CFA Institute v. Super Privacy Service c/o Dynadot
Claim Number: FA1802001773955
Complainant is CFA Institute (“Complainant”), represented by Ryan Compton of DLA Piper LLP, District of Columbia, USA. Respondent is Super Privacy Service c/o Dynadot (“Respondent”), California, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <cfapracticeexams.com>, registered with Dynadot, 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.
The Honorable Charles K. McCotter, Jr. (Ret.) as Panelist.
Complainant submitted a Complaint to the Forum electronically on February 27, 2018; the Forum received payment on February 27, 2018.
On February 28, 2018, Dynadot, Llc confirmed by e-mail to the Forum that the <cfapracticeexams.com> domain name is registered with Dynadot, LLC and that Respondent is the current registrant of the name. Dynadot, LLC has verified that Respondent is bound by the Dynadot, 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 March 1, 2018, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of March 21, 2018 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@cfapracticeexams.com. Also on March 1, 2018, 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 26, 2018, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed the Honorable Charles K. McCotter, Jr. (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
Complainant, CFA Institute, is an internationally renowned global, not-for-profit association comprised of investment professionals with over 150,000 members in 140 countries worldwide and 148 local member societies in seventy-three countries. Complainant is dedicated to developing and promoting the highest educational, ethical, and professional standards in the investment industry for the ultimate benefit of society. Complainant has rights in the CFA mark based on its registration of the marks with the United States Patent and Trademark Office (“USPTO”) (e.g. Reg. No. 2,495,459, registered Oct. 9, 2001). Respondent’s <cfapracticeexams.com> domain name is confusingly similar to Complainant’s CFA mark as it incorporates the mark in its entirety and merely adds the generic/descriptive term “practice exams” and the “.com” generic top-level domain (“gTLD”).
Respondent has no rights or legitimate interests in the <cfapracticeexams.com> domain name. Complainant has never authorized or licensed Respondent to use the CFA mark. Respondent’s use of the disputed domain name does not amount to a bona fide offering of goods or services or a legitimate noncommercial or fair use. Rather, the domain name resolves to a page that provides third-party links that presumably generate click-through fees for Respondent. Further, Respondent contains information regarding Complainant’s business, which would lead users to believe that the information is the same quality as that provided by Complainant.
Respondent registered and is using the <cfapracticeexams.com> domain name in bad faith. Respondent intentionally attempts to attract, for commercial gain, Internet users to its website by creating a likelihood of confusion with Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of Respondent’s website. Respondent creates this confusion to offer both competing and unrelated services. Further, Respondent is aware of Complainant’s rights in the well-known CFA mark.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant, CFA Institute, is an internationally renowned global, not-for-profit association comprised of investment professionals with over 150,000 members in 140 countries worldwide and 148 local member societies in seventy-three countries. Complainant is dedicated to developing and promoting the highest educational, ethical, and professional standards in the investment industry for the ultimate benefit of society. Complainant has rights in the CFA mark based on its registration of the marks with the USPTO (e.g. Reg. No. 2,495,459, registered Oct. 9, 2001). Respondent’s <cfapracticeexams.com> domain name is confusingly similar to Complainant’s CFA mark.
Respondent, Super Privacy Service c/o Dynadot, registered the <cfapracticeexams.com> domain name on June 22, 2016.
Respondent has no rights or legitimate interests in the <cfapracticeexams.com> domain name. Respondent uses the resolving webpage to host a blog on CFA examinations, and also contains various unrelated links to third-party webpages.
Respondent registered and is using the <cfapracticeexams.com> domain name in bad faith.
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 rights in the CFA mark under Policy ¶ 4(a)(i) based on its registration of the mark with the USPTO. See Home Depot Product Authority, LLC v. Samy Yosef / Express Transporting, FA 1738124 (Forum Jul. 28, 2017) (finding that registration with the USPTO was sufficient to establish the Complainant’s rights in the HOME DEPOT mark).
Respondent’s <cfapracticeexams.com> domain name is confusingly similar to the Complainant’s CFA mark as the domain name consists entirely of the mark plus the generic/descriptive term “practice exams” and the “.com” gTLD.
Respondent has no rights or legitimate interests in the <cfapracticeexams.com> domain name. Complainant has not authorized Respondent to use the CFA mark. Where a response is lacking, the WHOIS information can support a finding that the respondent does not have rights and legitimate interests in a domain name per Policy ¶ 4(c)(ii). See Philip Morris USA Inc. v. Usama Ramzan, FA 1737750 (Forum Jul. 26, 2017) (“[T]he pertinent WHOIS information identifies the registrant domain name only as “Usama Ramzan,” which does not resemble the domain name. On this record, we conclude that Respondent has not been commonly known by the challenged domain name so as to have acquired rights to or legitimate interests in it within the purview of Policy ¶ 4(c)(ii).”). Here, the WHOIS information of record identifies the registrant as “Super Privacy Service c/o Dynadot.” The Panel finds under Policy ¶ 4(c)(ii) that Respondent has not been commonly known by the <cfapracticeexams.com> domain name.
Respondent has failed to use the <cfapracticeexams.com> domain name to make a bona fide offering of goods or services or for a legitimate noncommercial or fair use. The domain name resolves to a website being used as blog but also links to third-party websites in order to obtain click-through revenue. Use of a domain name to provide competing information/services or unrelated third-party links is not a use indicative of rights or legitimate interests per Policy ¶¶ 4(c)(i) or (iii). See Upwork Global Inc. v. Shoaib Malik, FA 1654759 (Forum Feb. 3, 2016) (finding that Complainant provides freelance talent services, and that Respondent competes with Complainant by promoting freelance talent services through the disputed domain’s resolving webpage, which is neither a bona fide offering of goods or services, nor is it a legitimate noncommercial or fair use); see also Materia, Inc. v. Michele Dinoia, FA 1627209 (Forum Aug. 20, 2015) (“The Panel finds that Respondent is using a confusingly similar domain name to redirect users to a webpage with unrelated hyperlinks, that Respondent has no other rights to the domain name, and finds that Respondent is not making a bona fide offering or a legitimate noncommercial or fair use.”).
Respondent registered and uses the <cfapracticeexams.com> domain name in bad faith by creating a likelihood for confusion as to the source, sponsorship, affiliation, or endorsement of the disputed domain name to commercially benefit by offering both competing and unrelated services. Using a disputed domain name that trades upon the goodwill of a complainant for commercial gain can show bad faith under Policy ¶ 4(b)(iv). See Citadel LLC and its related entity, KCG IP Holdings, LLC v. Joel Lespinasse / Radius Group, FA 1579141 (Forum Oct. 15, 2014) (“Here, the Panel finds evidence of Policy ¶ 4(b)(iv) bad faith as Respondent has used the confusingly similar domain name to promote its own financial management and consulting services in competition with Complainant.”); see also Dovetail Ventures, LLC v. Klayton Thorpe, FA 1625786 (Forum Aug. 2, 2015) (holding that the respondent had acted in bad faith under Policy ¶ 4(b)(iv), where it used the disputed domain name to host a variety of hyperlinks, unrelated to the complainant’s business, through which the respondent presumably commercially gained).
Respondent had actual knowledge of Complainant’s rights in the CFA mark when it registered the<cfapracticeexams.com> domain name. Actual knowledge of a complainant's rights in a mark when renewing the registration of a confusingly similar domain name can evince bad faith under Policy ¶ 4(a)(iii).
Complainant having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <cfapracticeexams.com> domain name be TRANSFERRED from Respondent to Complainant.
The Honorable Charles K. McCotter, Jr. (Ret.), Panelist
Dated: April 7, 2018
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