CDW LLC v. Vicky Netzer / cdvv
Claim Number: FA1804001782406
Complainant is CDW LLC (“Complainant”), represented by Gregory J. Chinlund of Marshall, Gerstein & Borun LLP, Illinois, USA. Respondent is Vicky Netzer / cdvv (“Respondent”), New York, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <cdvv.biz>(the Domain Name), registered with Wild West Domains, LLC.
The undersigned certifies that she has acted independently and impartially and to the best of her knowledge has no known conflict in serving as Panelist in this proceeding.
Dawn Osborne as Panelist.
Complainant submitted a Complaint to the Forum electronically on April 18, 2018; the Forum received payment on April 18, 2018.
On April 18, 2018, Wild West Domains, LLC confirmed by e-mail to the Forum that the <cdvv.biz> domain name is registered with Wild West Domains, LLC and that Respondent is the current registrant of the name. Wild West Domains, LLC has verified that Respondent is bound by the Wild West Domains, 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 19, 2018, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of May 9, 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@cdvv.biz. Also on April 19, 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 16, 2018 pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Dawn Osborne 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’s contentions can be summarised as follows:
Complainant owns the trade mark CDW, registered inter alia in the USA for retail services relating to electronic equipment with first use recorded as 1985. It owns <CDW.com> and <CDW.biz>.
The Domain Name, registered in 2018 under the alias Vicky Netzer (who is an actual CDW employee and target of Respondent’s scam), resolves to a parking page but has been used in attempts to set up phishing e-mails. The replacement of the ‘w’ in Complainant’s mark with a double v is a misspelling and the use of the ‘vv’ to represent a ‘w’ and the gTLD .biz does not distinguish the Domain Name from Complainant’s mark.
Respondent has no rights or legitimate interests in the Domain Name as typosquatting and phishing cannot be bona fide or legitimate use.
Respondent has used false details for the WhoIs and is not commonly known by the Domain Name.
The use of the name of an employee of Complainant and attempts to access her e mail show that Respondent has actual knowledge of Complainant and its business. Using a domain name by a Respondent as an e mail address to pass the Respondent off as the Complainant is registration and use in bad faith designed to cause confusion on the Internet and disrupt the Respondent’s business.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant owns the trade mark CDW, registered inter alia in the USA with first use recorded as 1985. It owns <CDW.com> and <CDW.biz>.
The Domain Name registered in 2018 has been registered falsely in the name of one of Complainant’s employees and has been used in an attempted e mail scam.
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.”).
Identical and/or Confusingly Similar
The Domain Name in this Complaint combines a misspelling of Complainant’s CDW mark (registered in the USA for retail services relating to electronic equipment with first use recorded as 1985) and the gTLD .biz. A double v has been used because of its similarity to the letter ‘w’ so that the Domain Name resembles Complainant’s mark.
The addition of a gTLD does not negate confusing similarity between a domain name and a trade mark contained within it. See Wiluna Holdings LLC v Edna Sherman, FA 1652781 (Forum Jan. 22, 2016) (finding the addition of a gTLD insufficient to distinguish a disputed domain name from a mark under Policy ¶ 4(a)(i).)
Accordingly, the Panel finds that the Domain Name is confusingly similar to a mark in which Complainant has rights for the purpose of the Policy.
Rights or Legitimate Interests
Complainant has not authorised the use of its mark or a sign confusingly similar to it for similar services. Respondent has not answered this Complaint and there is no evidence or reason to suggest Respondent is, in fact commonly known by the Domain Name, having used a false name for the WhoIs details of the Domain Name.
The Domain Name has been used in an attempted fraudulent e-mail scheme using the name of an employee of Complainant. This is designed to be deceptive and confusing and pass off Respondent as Complainant. As such it cannot amount to the bona fide offering of goods and services or a legitimate fair use.
As such the Panelist finds that Respondent does not have rights or a legitimate interest in the Domain Name and that Complainant has satisfied the second limb of the Policy.
Registration and Use in Bad Faith
Impersonating a complainant by use of the complainant’s mark in an attempted fraudulent e-mail scam is disruptive and evinces bad faith registration and use. See Microsoft Corporation v Terrence Green/ Whois Agent/Whois Privacy Protection Service, Inc., FA 1661030 (Forum Apr 4 2016) (finding that respondent’s use of the disputed domain name for fraudulent e mails constituted bad faith registration and use pursuant to Policy ¶ 4(b)(iii).)
In the opinion of the panelist, the use made of the Domain Name in relation to a fraudulent e-mail scam attempt is confusing in that recipients of any such mails would reasonably believe those e-mails are connected to or approved by Complainant as a misspelling of Complainant’s trade mark, and the name of a former employee of Complainant would be used. This mimicking by Respondent of Complainant shows that Respondent was aware of Complainant and its business and rights and constitutes passing off. Accordingly, the Panel holds that Respondent has intentionally attempted to attract for commercial gain Internet users by creating a likelihood of confusion with Complainant's trade marks as to the source, sponsorship, affiliation or endorsement of electronic content on the Internet under Policy ¶ 4(b)(iv). See Qatalyst Partners L.P. v Devinmore, FA 1393436 (Forum July 13, 2011) (finding that using the disputed domain name as an e-mail address to pass itself off as the complainant is evidence of bad faith registration and use).
Typosquatting itself is evidence of relevant bad faith registration and use. See Diners Club int'l Ltd. v Domain Admin ****** It's all in the name ******, FA 156839 (Forum June 23, 2003) (registering a domain name in the hope that Internet users will mistype the Complainant’s mark and be taken to the Respondent’s site is registration and use in bad faith).
As such, the Panelist believes that the Complainant has made out its case that the Domain Name was registered and used in bad faith and has satisfied the third limb of the Policy under paras 4(b)(iv) and 4(b)(iii). There is no need to consider any additional grounds of bad faith.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <cdvv.biz> domain name be TRANSFERRED from Respondent to Complainant.
Dawn Osborne, Panelist
Dated: May 15, 2018
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