Western Alliance Bancorporation v. PETER MOG / MOGGY INC
Claim Number: FA1804001781011
Complainant is Western Alliance Bancorporation (“Complainant”), represented by Ryan D. Ricks of SNELL & WILMER L.L.P, Arizona, USA. Respondent is PETER MOG / MOGGY INC (“Respondent”), Canada.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <westernaliancebank.com>, registered with eNom, 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.
Bruce E. Meyerson as Panelist.
Complainant submitted a Complaint to the Forum electronically on April 9, 2018; the Forum received payment on April 9, 2018.
On April 10, 2018, eNom, LLC confirmed by e-mail to the Forum that the <westernaliancebank.com> domain name is registered with eNom, LLC and that Respondent is the current registrant of the name. eNom, LLC has verified that Respondent is bound by the eNom, 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@westernaliancebank.com. 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 4, 2018 pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Bruce E. Meyerson 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
1. Complainant has rights in the WESTERN ALLIANCE and WESTERN ALLIANCE BANCORPORATION marks based upon the registrations with the United States Patent and Trademark Office (“USPTO”) (e.g. WESTERN ALLIANCE—Reg. No. 5,323,825, registered Oct. 31, 2017; WESTERN ALLIANCE BANCORPORATION—Reg. No. 3,767,994, registered Mar. 30, 2010). Respondent’s <westernaliancebank.com>[i] domain name is confusingly similar to Complainant’s marks as it removes one “i” in the “alliance” part of the mark and adds the “.com” generic top-level domain (“gTLD”) to the otherwise wholly incorporated marks.
2. Respondent does not have rights or legitimate interests in the <westernaliancebank.com> domain name. Respondent is not commonly known by the domain name, nor has Complainant authorized or licensed Respondent to use the WESTERN ALLIANCE or WESTERN ALLIANCE BANCORPORATION marks in any manner. Respondent does not use the domain name to make a bona fide offering of goods or services for a legitimate noncommercial or fair use. Rather, Respondent used the resolving site for phishing by duplicating Complainant’s website in an attempt to induce consumers to enter their access credentials. Complainant notes that access to the domain name has now been disabled since alerting the registrar of the phishing scheme.
3. Respondent registered and is using the <westernaliancebank.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 marks. Respondent creates this confusion in furtherance of a phishing scheme to fraudulently obtain customer user identification and password credentials by impersonating Complainant, or otherwise engage in illegal activity.
4. Respondent knew or should have known of Complainant’s rights to the WESTERN ALLIANCE and WESTERN ALLIANCE BANCORPORATION marks at the time Respondent registered and subsequently used the <westernaliancebank.com> domain name. Finally, Respondent engaged in typosquatting by utilizing a misspelling of Complainant’s mark to register a domain name.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant holds trademark rights for the WESTERN ALLIANCE and WESTERN ALLIANCE BANCORPORATION marks. Respondent’s domain name is confusingly similar to Complainant’s WESTERN ALLIANCE and WESTERN ALLIANCE BANCORPORATION marks. Complainant has established that Respondent lacks rights or legitimate interests in the use of the <westernaliancebank.com> domain name and that Respondent registered and used the 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 WESTERN ALLIANCE and WESTERN ALLIANCE BANCORPORATION marks based upon the registrations with the USPTO (e.g. WESTERN ALLIANCE—Reg. No. 5,323,825, registered Oct. 31, 2017; WESTERN ALLIANCE BANCORPORATION—Reg. No. 3,767,994, registered Mar. 30, 2010). Registration of a mark with the USPTO is sufficient to establish rights in that mark per Policy ¶ 4(a)(i). 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). Therefore, the Panel holds that Complainant’s registration of the WESTERN ALLIANCE and WESTERN ALLIANCE BANCORPORATION marks with the USPTO is sufficient to establish rights in the mark under Policy ¶ 4(a)(i).
Next, Complainant argues Respondent’s <westernaliancebank.com> domain name is confusingly similar to Complainant’s WESTERN ALLIANCE and WESTERN ALLIANCE BANCORPORATION marks as it incorporates the mark in its entirety, removes one “l” in “alliance,” and adds the “.com” gTLD. These changes to the mark are not sufficient to distinguish the domain name from Complainant’s marks pursuant to Policy ¶ 4(a)(i). See Wells Fargo & Company v. VALERIE CARRINGTON, FA 1621718 (Forum July 2, 2015) (finding that the <wllsfago.com> domain name is confusingly similar to the WELLS FARGO mark as the domain name merely omits the “e” and “r” from the mark while adding the “.com” gTLD suffix.). The Panel therefore determines that the <westernaliancebank.com> domain name is confusingly similar to the WESTERN ALLIANCE and WESTERN ALLIANCE BANCORPORATION marks per Policy ¶ 4(a)(i).
The Panel finds Complainant has satisfied Policy ¶ 4(a)(i).
Complainant alleges that Respondent holds no rights or legitimate interests in the <westernaliancebank.com> domain name. This allegation must be supported with a prima facie showing by Complainant under Policy ¶ 4(a)(ii). After a complainant successfully makes a prima facie case, a respondent is faced with the burden of proving it does have rights or legitimate interests in the domain name. In Swedish Match UK Ltd. v. Admin, Domain, FA 873137 (Forum Feb. 13, 2007), the panel held that when a complainant produces a prima facie case, the burden of proof then shifts to the respondent to demonstrate its rights or legitimate interests in the domain name under Policy ¶ 4(c); see also Compagnie Generale des Matieres Nucleaires v. Greenpeace Int’l, D2001-0376 (WIPO May 14, 2001) (“For the purposes of this sub paragraph, however, it is sufficient for the Complainant to show a prima facie case and the burden of proof is then shifted on to the shoulders of Respondent. In those circumstances, the common approach is for respondents to seek to bring themselves within one of the examples of paragraph 4(c) or put forward some other reason why they can fairly be said to have a relevant right or legitimate interests in respect of the domain name in question.”). The Panel holds that Complainant has made a prima facie case.
Complainant argues that Respondent has no rights or legitimate interests in the <westernaliancebank.com> domain name, as Respondent is not commonly known by the domain name. Where a response is lacking, WHOIS information can support a finding that a respondent is not commonly known by a domain name per Policy ¶ 4(c)(ii). See Philip Morris USA Inc. v. Usama Ramzan, FA 1737750 (Forum Jul. 26, 2017) (“Moreover, the pertinent WHOIS information identifies the registrant domain name only as “Usama Ramzan,” which does not resemble the domain name.”). The WHOIS information of record for the <westernaliancebank.com> domain name lists the registrant as “PETER MOG / MOGGY INC,” and no information in the record indicates that Respondent owns any trademark or service mark rights in the WESTERN ALLIANCE and WESTERN ALLIANCE BANCORPORATION names. The Panel therefore finds that Respondent has not been commonly known by the <westernaliancebank.com> domain name under ¶ 4(c)(ii).
Complainant also argues Respondent’s lack of rights or legitimate interests in the <westernaliancebank.com> domain name is demonstrated by its failure to use the name to make a bona fide offering of goods or services or for a legitimate noncommercial or fair use. The records shows that the domain name was used as part of a fraudulent phishing scheme to obtain customer information by impersonating Complainant. Using a domain name to pass off as a complainant in order to engage in illegal phishing activity is not a use indicative of rights or legitimate interests per Policy ¶¶ 4(c)(i) or (iii). See Amazon Technologies, Inc. v. Suzen Khan / Nancy Jain / Andrew Stanzy, FA 1741129 (Forum Aug. 16, 2017) (finding that respondent lacked rights and legitimate interests in a domain name with which it conducted a phishing scheme to procure “Internet users’ personal information”). The Panel holds that that Respondent does not have the rights or legitimate interests in the <westernaliancebank.com> domain name per Policy ¶¶ 4(c)(i) or (iii).
The Panel finds Complainant has satisfied Policy ¶ 4(a)(ii).
Complainant contends that Respondent’s bad faith is indicated by its use of the <westernaliancebank.com> domain name to pass off as Complainant in furtherance of a phishing scheme to obtain customer information. Use of a domain name to pass off as a complainant to engage in illegal activity can demonstrate a respondent’s bad faith per Policy ¶ 4(b)(iv). See Google Inc. v. Domain Admin, FA 1502001605239 (Forum Mar. 22, 2015) (finding that use of a disputed domain name to aid illegal activities under Complainant’s trademark suggests Respondent’s bad faith). Upon alerting the registrar the domain name was being used for a phishing scheme, Complainant states that access to the domain name was disabled. The Panel holds that Respondent has registered and used the domain name in bad faith per ¶ 4(b)(iv).
Complainant also contends it is inconceivable that Respondent could have registered the <westernaliancebank.com> domain name without actual knowledge of Complainant’s rights in the mark. The Panel agrees with Complainant that it is apparent from the domain name that Respondent had actual knowledge of Complainant’s rights in the mark prior to registering the domain name and evidence of bad faith under Policy ¶ 4(a)(iii) has been shown. See Orbitz Worldwide, LLC v. Domain Librarian, FA 1535826 (Forum Feb. 6, 2014) (“The Panel notes that although the UDRP does not recognize ‘constructive notice’ as sufficient grounds for find Policy ¶ 4(a)(iii) bad faith, the Panel here finds actual knowledge through the name used for the domain and the use made of it.”). The Panel holds that Respondent had actual knowledge of Complainant’s rights in the WESTERN ALLIANCE and WESTERN ALLIANCE BANCORPORATION marks and thus registered the <westernaliancebank.com> domain name in bad faith.
The Panel finds Complainant has satisfied Policy ¶ 4(a)(iii).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <westernaliancebank.com> domain name be TRANSFERRED from Respondent to Complainant.
Bruce E. Meyerson, Panelist
Dated: May 15, 2018
[i] The WHOIS information of record shows that the <westernaliancebank.com> domain name was registered on April 4, 2018.
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