The United Nations Federal Credit Union v. Protection of Private Person / Privacy Protection
Claim Number: FA1804001780766
Complainant is The United Nations Federal Credit Union (“Complainant”), represented by Michael Rott, New York, USA. Respondent is Protection of Private Person / Privacy Protection (“Respondent”), Russia.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <unfcuonline.org>, registered with Registrar of Domain Names REG.RU 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 April 6, 2018; the Forum received payment on April 6, 2018.
On April 10, 2018, Registrar of Domain Names REG.RU LLC confirmed by e-mail to the Forum that the <unfcuonline.org> domain name is registered with Registrar of Domain Names REG.RU LLC and that Respondent is the current registrant of the name. Registrar of Domain Names REG.RU LLC has verified that Respondent is bound by the Registrar of Domain Names REG.RU 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 11, 2018, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of May 1, 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@unfcuonline.org. Also on April 11, 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 May 3, 2018, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the 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 be transferred from Respondent to Complainant.
A. Complainant
Complainant, The United Nations Federal Credit Union, uses its UNFCU mark to provide and market its products and services. Complainant has rights in the mark based upon registration with the United States Patent and Trademark Office (“USPTO”) (Reg. No. 2,666,294, registered Dec. 24, 2002.). Respondent’s <unfcuonline.org> is identical or confusingly similar to Complainant’s mark.
Respondent does not have rights or legitimate interests in the <unfcuonline.org> domain name. Respondent is not commonly known by the disputed domain name. Respondent is not using the disputed domain name to make a bona fide offering of goods or services or for a legitimate non-commercial or fair use. Rather, Respondent is attempting to pass itself off as Complainant to mislead Internet users.
Respondent has registered and used the <unfcuonline.org> domain name in bad faith. Respondent uses the disputed domain name to pass itself off as Complainant.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Panel Note: Supported Language Request
The Panel notes that Complainant requests that the language of this administrative proceeding proceed in the English language pursuant to UDRP Rule 11(a). Complainant makes this request in light of the Russian language Registration Agreement. Pursuant to UDRP Rule 11(a), the Panel finds that persuasive evidence has been incorporated by Complainant to suggest the likely possibility that the Respondent is conversant and proficient in the English language. After considering the circumstances of the present case, the Panel decides that the proceeding should be in English.
Complainant is The United Nations Federal Credit Union of Long Island City, New York, USA. Complainant is the owner of the domestic registration for the mark UNFCU, which it has continuously used since at least as early as 2002, in connection with its provision of banking and financial services, including but not limited to, educational lending, foreign currency exchanges, securities brokerage services, and financial planning. Complainant is also the owner of domain registrations for its mark including <unfcu.com> which it created in 1995 and <unfcu.net> which it created in 2002.
Respondent is Protection of Private Person / Privacy Protection, of Moscow, Russia. Respondent’s registrar’s address is listed as “Not available”, although an email for the registrar reflects a .ru ccTLD indicative of Russia. The Panel notes that the <unfcuonline.org> domain name was created on or about March 16, 2018.
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 claims rights in the UNFCU mark based upon its registration with the USPTO (Reg. No. 2,666,294, registered Dec. 24, 2002.). Registration with the USPTO is sufficient to establish rights in a mark pursuant to Policy ¶ 4(a)(i). See Haas Automation, Inc. v. Jim Fraser, FA 1627211 (Forum Aug. 4, 2015) (finding that Complainant’s USPTO registrations for the HAAS mark sufficiently demonstrate its rights in the mark under Policy ¶ 4(a)(i)). The Panel here finds that Complainant has rights in the UNFCU mark per Policy ¶ 4(a)(i).
Complainant asserts, without specific argument, that the <unfcuonline.org> domain name is identical or confusingly similar to the UNFCU mark. The Panel notes that the domain name adds the generic term “online” to Complainant’s wholly incorporated mark. Panels have previously found that slight differences between domain names and registered marks, such as the addition of words that describe the goods or services in connection with the mark, do not distinguish the domain name from the mark incorporated therein per Policy ¶ 4(a)(i). See Traditional Medicinals, Inc. v. Flippa Chick, FA1006001328702 (Forum July 15, 2010) (“Respondent’s disputed domain name contains Complainant’s SMOOTH MOVE mark in its entirety after removing the space separating the terms of the mark, adds the descriptive terms “herbal tea” and adds the generic top-level domain (“gTLD”) “.com.” The Panel finds that the addition of descriptive terms creates a confusing similarity between the disputed domain name and Complainant’s mark.”) The Panel further notes that the domain name also adds the generic top-level domain (“gTLD”) “.org.” The addition of a gTLD is irrelevant in determining whether the disputed domain name is confusingly similar to an incorporated mark. See Bond & Co. Jewelers, Inc. v. Tex. Int’l Prop. Assocs., FA 937650 (Forum Apr. 30, 2007) (finding that the elimination of spaces between terms and the addition of a gTLD do not establish distinctiveness from the complainant’s mark under Policy ¶ 4(a)(i)). The Panel here finds that Respondent’s <unfcuonline.org> domain name is confusingly similar to Complainant’s UNFCU mark per Policy ¶ 4(a)(i).
Respondent raises no contentions with regards to Policy ¶ 4(a)(i).
The 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). The Complainant here has set forth the requisite prima facie case.
Complainant argues that Respondent has no rights or legitimate interests in the <unfcuonline.org> domain name, as Respondent is not commonly known by the disputed domain name. Where a response is lacking, WHOIS information can support a finding that a respondent is not commonly known by the disputed domain name per Policy ¶ 4(c)(ii). See Alaska Air Group, Inc. and its subsidiary, Alaska Airlines v. Song Bin, FA1408001574905 (Forum Sept. 17, 2014) (holding that the respondent was not commonly known by the disputed domain name as demonstrated by the WHOIS information and based on the fact that the complainant had not licensed or authorized the respondent to use its ALASKA AIRLINES mark.). The WHOIS information of record identifies Respondent as “Protection of Private Person / Privacy Protection.” The Panel here finds, under Policy ¶ 4(c)(ii), that Respondent is not commonly known by the disputed domain name.
Complainant further argues Respondent’s lack of rights or legitimate interests in the disputed domain name is evinced by its failure to use the <unfcuonline.org> domain name for a bona fide offering of goods or services or legitimate noncommercial or fair use. Rather, Respondent is using the <unfcuonline.org> domain name to pass off as Complainant to mislead users. Use of a confusingly similar domain name to pass off as complainant is evidence of a respondent’s lack of rights or legitimate interests in the disputed domain name per Policy ¶¶ 4(c)(i) & (iii). See Netflix, Inc. v. Irpan Panjul / 3corp.inc, FA 1741976 (Forum Aug. 22, 2017) (“The usage of Complainant’s NETFLIX mark which has a significant reputation in relation to audio visual services for unauthorised audio visual material is not fair as the site does not make it clear that there is no commercial connection with Complainant and this amounts to passing off . . . As such the Panelist finds that Respondent does not have rights or a legitimate interest in the Domain Name.”). Here, Complainant argues that Respondent attempts to pass off as Complainant to defraud the public. The Panel here finds that Respondent lacks rights or legitimate interests in the disputed domain name per Policy ¶¶ 4(c)(i) & (iii).
Respondent raises no contentions with regards to Policy ¶ 4(a)(ii).
The Complainant has proven this element.
Complainant argues that Respondent has registered and uses the <unfcuonline.org> domain name in bad faith because Respondent attempts to pass itself off as Complainant. The non-exclusive nature of Policy ¶ 4(b) allows for consideration of additional factors in an analysis for bad faith pursuant to Policy ¶ 4(a)(iii). See Digi Int’l Inc. v. DDI Sys., FA 124506 (Forum Oct. 24, 2002) (determining that Policy ¶ 4(b) sets forth certain circumstances, without limitation, that shall be evidence of registration and use of a domain name in bad faith). Use of a confusingly similar domain name to pass off as complainant is evidence of bad faith under Policy ¶ 4(a)(iii). See Bittrex, Inc. v. Wuxi Yilian LLC, FA 1760517 (Forum Dec. 27, 2017) (finding bad faith per Policy ¶ 4(b)(iv) where “Respondent registered and uses the <lbittrex.com> domain name in bad faith by directing Internet users to a website that mimics Complainant’s own website in order to confuse users into believing that Respondent is Complainant, or is otherwise affiliated or associated with Complainant.”). Here, Complainant asserts that Respondent used the disputed domain name to confuse, mislead and defraud the public, holding itself out to be Complainant. The Panel here finds that Respondent registered and uses the disputed domain name in bad faith per Policy ¶ 4(a)(iii).
Respondent raises no contentions with regards to Policy ¶ 4(a)(iii).
The Complainant has proven this element.
DECISION
As the 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 <unfcuonline.org> domain name be TRANSFERRED from Respondent to Complainant.
Darryl C. Wilson, Panelist
Dated: May 17, 2018
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