Synovus Financial Corp. v. Domain Admin C/O ID10760 / Privacy Protection Service INC dba PrivacyProtect.org
Claim Number: FA1704001728400
Complainant is Synovus Financial Corp. (“Complainant”), represented by Mary Grace Gallagher of Alston & Bird, LLP, Georgia, U.S.A. Respondent is Domain Admin C/O ID10760 / Privacy Protection Service INC dba PrivacyProtect.org (“Respondent”), Australia.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <synovuss.com>, registered with Domain.com, 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.
Hon. Karl v. Fink (Ret.) as Panelist.
Complainant submitted a Complaint to the Forum electronically on April 24, 2017; the Forum received payment on April 24, 2017.
On April 24, 2017, Domain.com, LLC confirmed by e-mail to the Forum that the <synovuss.com> domain name is registered with Domain.com, LLC and that Respondent is the current registrant of the name. Domain.com, LLC has verified that Respondent is bound by the Domain.com, 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 April 25, 2017, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of May 15, 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@synovuss.com. Also on April 25, 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 May 18, 2017, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Hon. Karl V. Fink (Ret.) 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
Respondent’s disputed domain name, <synovuss.com>, is confusingly similar to the SYNOVUS mark in which Complainant has established rights, according to Policy ¶ 4(a)(i). First, Complainant has established rights in the SYNOVUS mark by registering the mark with the United States Patent and Trademark Office (“USPTO”), Reg. No. 4,517,546, registered April 22, 2014. Registration of the mark with the USPTO is sufficient to establish Complainant’s rights in the mark. Second, <synovuss.com> is confusingly similar to the SYNOVUS mark because it incorporates SYNOVUS in its entirety and merely adds one letter and a generic top-level domain.
Respondent has no legitimate rights or interests in the disputed domain name. First, Respondent is not commonly known by the disputed domain name because the WHOIS information for the registrant does not indicate otherwise and Complainant has not permitted Respondent to use the SYNOVUS mark. Second, Respondent is not using the disputed domain name for either a bona fide offering of goods or services or a legitimate non-commercial fair use. Respondent has imitated Complainant’s website entirely, except in very minor details. Furthermore, Respondent encourages users to enter their username and password. Respondent’s actions exhibit an attempt to pass off as Complainant and commit a phishing scam. Such actions preclude a finding of both a bona fide offering of goods or services and a legitimate non-commercial fair use.
Finally, Respondent has registered and used the disputed domain name in bad faith. Respondent has used a domain name confusingly similar to Complainant’s SYNOVUS mark to mislead internet users to a website that is designed to look identical to Complainant’s website in order to commit a phishing scam on users. Respondent’s actions support a finding of bad faith. Respondent’s actions also evince that Respondent had actual knowledge of Complainant’s rights, which further supports a finding of bad faith.
B. Respondent
Respondent failed to submit a Response in this proceeding.
For the reasons set forth below, the Panel finds Complainant is entitled to the requested relief of transfer of the <synovuss.com> domain name.
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 Panel finds that Respondent’s domain name <synovuss.com> is confusingly similar to Complainant’s SYNOVUS mark in which Complainant has established rights. The Panel finds that Complainant has established rights in the SYNOVUS mark because Complainant has registered that mark with the USPTO. See The Toronto-Dominion Bank v. DOMAIN CONTROLLER / YOYO EMAIL, FA 1622018 (Forum July 14, 2015) (holding that “Paragraph 4(a) of the Policy requires the existence of a trademark or a service mark. When a sign is registered as a trademark, it is surrounded by a presumption of sufficient distinctive force, and the owner is granted an exclusive right over the mark, which entitles him to prevent any third party from using the registered sign or any other sign confusingly similar to it.”).
Complainant contends that Respondent’s domain name is confusingly similar to Complainant’s SYNOVUS mark. Respondent has entirely incorporated Complainant’s mark and merely adds a letter and a generic top level domain name. Neither the addition of a letter to the mark nor the addition of a gTLD is sufficient to eliminate confusing similarity. 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.’). In conclusion, the Panel finds that Complainant has satisfied its burden with respect to Policy ¶ 4(a)(i).
Complainant has proved this element.
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), and 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); see also AOL LLC v. Gerberg, FA 780200 (Forum Sept. 25, 2006) (“Complainant must first make a prima facie showing that Respondent does not have rights or legitimate interest in the subject domain names, which burden is light. If Complainant satisfies its burden, then the burden shifts to Respondent to show that it does have rights or legitimate interests in the subject domain names.”).
Complainant contends that Respondent is not commonly known by the disputed domain name. In assessing this prong of the Policy—paragraph 4(c)(ii)—panels typically look to the WHOIS information where there is no response. 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). The WHOIS information lists “Domain Admin C/O ID10760 / Privacy Protection Service INC dba PrivacyProtect.org” as the registrant for the disputed domain name. Complainant has not authorized Respondent’s use of the SYNOVUS mark. 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). The Panel finds that Respondent is not commonly known by the disputed domain name.
Complainant contends that Respondent has not used the disputed domain name for either a bona fide offering of goods or services or a legitimate non-commercial use. Respondent has used the domain name to create a website almost identical to Complainant’s website <synovus.com> by copying multiple pages of Complainant’s website. Respondent’s website includes a “log-in” box in which Complainant alleges that users can enter their “synovus” username and password. The Panel finds that Respondent’s website is a phishing scam and finds that Respondent has not used the disputed domain name for either a bona fide offering of goods or services or a legitimate non-commercial or fair use. See Morgan Stanley v. Zhange Sheng Xu / Zhang Sheng Xu, FA1501001600534 (Forum Feb. 26, 2015) (“The Panel agrees that the respondent’s apparent phishing attempt provides further indication that the respondent lacks any rights or legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii).”). The Panel also finds that Respondent’s actions evince an attempt to pass off as Complainant and thereby find that Respondent is not using the disputed domain name for a bona fide offering of goods or services or legitimate non-commercial fair use. See MO Media LLC v. NeXt Age Technologies LTD, FA 220031 (Forum Feb. 18, 2004) (finding the respondent lacked rights and legitimate interests in the disputed domain name when the respondent copied the complainant’s websites in their entirety at the disputed domain names).
The Panel finds that Complainant has satisfied its burden with respect to Policy ¶ 4(a)(ii).
Complainant has proved the element.
Complainant contends that Respondent is using the disputed domain name to commit a phishing scam directed at Complainant’s clients and therefore Respondent has registered and is using the disputed domain name in bad faith. The Panel finds that Respondent has used the domain name to create a website almost identical to Complainant’s website, <synovus.com>, by copying multiple pages of Complainant’s website. Respondent’s website includes a “log-in” box in which Complainant alleges that users can enter their “synovus” username and password. Complainant argues that Respondent presumably profits from this fraudulent use. See Hess Corp. v. GR, FA 770909 (Forum Sept. 19, 2006) (determining that the respondent demonstrated bad faith registration and use because it was attempting to acquire the personal and financial information of Internet users through a confusingly similar domain name). The Panel finds that Respondent’s website is a phishing scam and concludes that Respondent has registered and is using the disputed domain name in bad faith.
Complainant also contends that Respondent had actual knowledge of Complainant’s rights in the SYNOVUS mark. The Panel finds that Respondent has copied multiple pages of Complainant’s website and used a domain name that is confusingly similar to Complainant’s SYNOVUS mark. The Panel infers from Respondent’s actions that Respondent had actual knowledge of Complainant’s rights in SYNOVUS and therefore finds that Respondent acted in bad faith. See Twentieth Century Fox Film Corporation and Fox International Channels (US), Inc. v. Daniel Pizlo / HS, FA1412001596020 (Forum Jan. 27, 2015) (finding that the respondent must have had actual knowledge of the complainant and its rights in the FOX LIFE mark, where the respondent was using the disputed domain name to feature one of the complainant’s videos on its website, indicating that the respondent had acted in bad faith under Policy ¶ 4(a)(iii)).
Complainant has proved this element.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <synovuss.com> domain name be TRANSFERRED from Respondent to Complainant.
Hon. Karl V. Fink (Ret.) Panelist
Dated: May 25, 2017
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