Western Alliance Bancorporation v. James Brandon
Claim Number: FA1804001783001
Complainant is Western Alliance Bancorporation (“Complainant”), represented by Ryan D. Ricks of SNELL & WILMER L.L.P, Arizona, USA. Respondent is James Brandon (“Respondent”), Georgia, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <westernalliancebcorporation.info>, 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 April 23, 2018; the Forum received payment on April 23, 2018.
On April 23, 2018, Dynadot, LLC confirmed by e-mail to the Forum that the <westernalliancebcorporation.info> 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 April 23, 2018, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of May 14, 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@westernalliancebcorporation.info. Also on April 23, 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 21, 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, Western Alliance Bancorporation, is a banking company in the United States. Complainant uses its WESTERN ALLIANCE BANCORPORATION mark to promote its products and services. Complainant has rights in the mark through registration with the United States Patent and Trademark Office (“USPTO”) (Reg. No. 3,767,994, registered Mar. 30, 2010). Respondent’s <westernalliancebcorporation.info> domain name is confusingly similar to Complainant’s mark because it merely adds the generic top-level domain (“gTLD”) “.info” to a misspelled version of Complainant’s mark.
Respondent does not have rights or legitimate interests in the <westernalliancebcorporation.info> domain name. Complainant has not authorized Respondent to use its WESTERN ALLIANCE or WESTERN ALLIANCE BANCORPORATION marks. Respondent is not commonly known by the disputed domain name as the WHOIS information of record lists “James Brandon” as the registrant. Respondent is not using the <westernalliancebcorporation.info> domain name in connection with any bona fide offering of goods or services or legitimate noncommercial or fair use. Instead, Respondent used the disputed domain name to phish for Internet users’ personal and financial information.
Respondent registered and uses the <westernalliancebcorporation.info> domain name in bad faith. Respondent uses the domain name to create confusion with Complainant’s mark for Respondent’s commercial gain. Respondent registered the domain name with actual knowledge of Complainant’s rights in the WESTERN ALLIANCE BANCORPORATION mark. Further, Respondent used the domain name in connection with a phishing scheme. Finally, Respondent’s <westernalliancebcorporation.info> domain name consists of typosquatted version of Complainant’s WESTERN ALLIANCE BANCORPORATION mark.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant, Western Alliance Bancorporation, is a banking company in the United States. Complainant uses its WESTERN ALLIANCE BANCORPORATION mark to promote its products and services. Complainant has rights in the mark through registration with the USPTO (Reg. No. 3,767,994, registered Mar. 30, 2010). Respondent’s <westernalliancebcorporation.info> domain name is confusingly similar to Complainant’s mark.
Respondent registered the <westernalliancebcorporation.info> domain name on March 29, 2018.
Respondent does not have rights or legitimate interests in the <westernalliancebcorporation.info> domain name. Respondent is not making an active use of the domain name.
Respondent registered and uses the <westernalliancebcorporation.info> 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., 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., 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 its WESTERN ALLIANCE BANCORPORATION mark under Policy ¶ 4(a)(i) through registration with the USPTO. Respondent’s <westernalliancebcorporation.info> domain name is confusingly similar to Complainant’s WESTERN ALLIANCE BANCORPORATION mark because it merely appends the gTLD “.info” to a misspelled version of Complainant’s mark.
Respondent does not have rights or legitimate interests in the disputed domain name. Respondent is not commonly known by the domain name. Complainant has not authorized Respondent to use its WESTERN ALLIANCE BANCORPORATION mark. The WHOIS information of record for the <westernalliancebcorporation.info> domain name lists “James Brandon” as the registrant. Absent contradicting evidence in the record that a respondent was authorized to use a complainant’s mark in a domain name or that a respondent is commonly known by the disputed domain name, the respondent may be presumed to lack rights and legitimate interests in the domain name. See IndyMac Bank F.S.B., FA 830934 (Forum Dec. 7, 2006) (finding that the respondent failed to establish rights and legitimate interests in the <emitmortgage.com> domain name as the respondent was not authorized to register domain names featuring the complainant’s mark and failed to submit evidence that it is commonly known by the domain name).
Complainant claims that Respondent previously used the domain name to conduct a fraudulent phishing scheme. Use of a domain name to phish for Internet users’ personal or financial information may not be considered a bona fide offering or fair use under Policy ¶¶ 4(c)(i) and (iii). See Juno Online Servs., Inc., FA 241972 (Forum Mar. 29, 2004) (finding that using a domain name in a fraudulent scheme to deceive Internet users into providing their credit card and personal information is not a bona fide offering of goods or services nor a legitimate noncommercial or fair use). However, Complainant has failed to produce any evidence of use of Respondent’s resolving website for a phishing scheme.
Rather, Complainant has shown that Respondent’s resolving website is currently inactive which also is not a bona fide offering of goods or services, or a legitimate noncommercial or fair use. See Thermo Electron Corp., FA 713851 (Forum July 12, 2006) (finding that the respondent’s non-use of the disputed domain names demonstrates that the respondent is not using the disputed domain names for a bona fide offering of goods or services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii)).
Failure to make an active use of a confusingly similar domain name also constitutes bad faith use and registration under Policy ¶ 4(a)(iii). See Caravan Club, FA 95314 (Forum Aug. 30, 2000).
Further, Respondent had actual knowledge of Complainant’s rights in the WESTERN ALLIANCE BANCORPORATION mark prior to registering the <westernalliancebcorporation.info> domain name. Therefore, Respondent registered and used the domain name in bad faith under Policy ¶ 4(a)(iii).
Also, Respondent’s <westernalliancebcorporation.info> domain name consists of a typosquatted version of Complainant’s WESTERN ALLIANCE BANCORPORATION mark. Respondent’s <westernalliancebcorporation.info> domain name is a misspelled version of Complainant’s WESTERN ALLIANCE BANCORPORATION because it omits the letters “A” and “N” from the term “BANCORPORATION.” Typosquatting is evidence of Policy ¶ 4(a)(iii) bad faith. See Twitter, Inc., FA 1607451 (Forum Apr. 2, 2015) (“Typosquatting is a practice whereby a domain name registrant, such as Respondent, deliberately introduces typographical errors or misspellings into a trademark and then uses the string in a domain name. . . . Respondent’s typosquatting, in itself, is evidence of Policy ¶ 4(a)(iii) bad faith.”).
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 <westernalliancebcorporation.info> domain name be TRANSFERRED from Respondent to Complainant.
The Honorable Charles K. McCotter, Jr. (Ret.), Panelist
Dated: June 5, 2018
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