Webster Financial Corporation v. THIS DOMAIN MAY BE FOR SALE AT HTTPS://WWW.NETWORKSOLUTIONS.COM / New Ventures Services, Corp
Claim Number: FA1812001820480
Complainant is Webster Financial Corporation (“Complainant”), represented by Gail Podolsky of Carlton Fields Jorden Burt, P.A., Georgia, USA. Respondent is THIS DOMAIN MAY BE FOR SALE AT HTTPS://WWW.NETWORKSOLUTIONS.COM / New Ventures Services, Corp (“Respondent”), Pennsylvania, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <hdabank.com>, registered with eNom427, Incorporated.
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.
Richard Hill as Panelist.
Complainant submitted a Complaint to the Forum electronically on December 11, 2018; the Forum received payment on December 11, 2018.
On December 12, 2018, eNom427, Incorporated confirmed by e-mail to the Forum that the <hdabank.com> domain name is registered with eNom427, Incorporated and that Respondent is the current registrant of the name. eNom427, Incorporated has verified that Respondent is bound by the eNom427, Incorporated 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 December 13, 2018, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of January 2, 2019 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@hdabank.com. Also on December 13, 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 January 4, 2018, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Richard Hill 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 states that it is a Delaware corporation headquartered in Waterbury, Connecticut. It holds approximately $22 billion in assets, and provides business and consumer banking, mortgage, insurance, trust, investment and other financial services. Its HSA Bank division is one of the largest administrators of health savings accounts in the United States with, as of January 29, 2010, over 265,000 active accounts, over $730 million in HSA funds in custody, and over $75 million in brokerage investments. Complainant has rights in the HSA BANK mark based on registration in the United States in 2006.
Complainant alleges that the disputed domain name is confusingly similar to its HSA BANK mark, as the domain name replaces the letter “s” with the letter “d” and adds generic top-level domain (“gTLD”) “.com.” Complainant cites UDRP precedents to support its position.
According to Complainant, Respondent has no rights or legitimate interests in the disputed domain name. Respondent is not commonly known by the disputed domain name, nor has Complainant authorized Respondent to use the HSA BANK mark in any manner. 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, Respondent is using the disputed domain name to host links to third parties that directly compete with Complainant. Complainant cites UDRP precedents to support its position.
Further, says Complainant, Respondent registered and is using the disputed domain name in bad faith. Respondent attempts to disrupt Complainant’s business and intentionally seeks to attract, for commercial gain, Internet users to the disputed domain name by hosting pay-per-click links to third parties that offer services that directly compete with Complainant. Respondent’s changing of a single letter of Complainant’s mark indicates typosquatting and thus bad faith. Finally, Respondent had actual or constructive knowledge of Complainant’s rights in the HSA BANK mark. Complainant cites UDRP precedents to support its position.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant owns the mark HSA BANK and uses it to market financial and banking services.
Complainant’s registration of its mark dates back to 2006.
The disputed domain name was registered in 2018.
Complainant has not licensed or otherwise authorized Respondent to use its mark.
The resolving website features click-through advertising links to products and services that compete with those of Complainant.
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.”).
The disputed domain name is confusingly similar to Complainant’s HSA BANK mark, as the domain name incorporates the mark in its entirety while replacing the letter “s” with the letter “d” and adds the gTLD “.com.” Typosquatting, either by adding or removing letters, and the addition of a gTLD to a complainant’s mark is insufficient to overcome a confusingly similar analysis per Policy ¶ 4(a)(i). See Bank of America Corporation v. Above.com Domain Privacy, FA 1629452 (Forum Aug. 18, 2015) (finding that the <blankofamerica.com> domain name contains the entire BANK OF AMERICA mark and merely adds the gTLD ‘.com’ and the letter ‘l’ to create a common misspelling of the word ‘bank.’). Accordingly, the Panel may finds that the disputed domain name is confusingly similar to Complainant’s mark per Policy ¶ 4(a)(i).
Complainant has not authorized Respondent to use the HSA BANK mark in any way. Respondent is not commonly known by the disputed domain name: where a response is lacking, WHOIS information can support a finding that the respondent is not commonly known by the disputed domain name per Policy ¶ 4(c)(ii). See Chevron Intellectual Property LLC v. Fred Wallace, FA1506001626022 (Forum July 27, 2015) (finding that the respondent was not commonly known by the <chevron-europe.com> domain name under Policy ¶ 4(c)(ii), as the WHOIS information named “Fred Wallace” as registrant of the disputed domain name). Here, the WHOIS information of record identifies the owner of the disputed domain name as “THIS DOMAIN MAY BE FOR SALE AT HTTPS://WWW.NETWORKSOLUTIONS.COM / New Ventures Services, Corp.” The Panel therefore finds under Policy ¶ 4(c)(ii) that Respondent has not been commonly known by the disputed domain name.
Respondent fails to use the disputed domain name to make a bona fide offering of goods and services or for a legitimate or noncommercial or fair use. Instead, the domain name resolves to a website which is being used to obtain click-through revenue by linking to competitors’ websites. Use of a domain name to host a page for third-party links is not a use indicative of rights or legitimate interests per Policy ¶¶ 4(c)(i) or (iii). See Ashley Furniture Industries, Inc. v. domain admin / private registrations action gesellschaft, FA1506001626253 (Forum July 29, 2015) (“Respondent is using the disputed domain name to resolve to a web page containing advertising links to products that compete with those of Complainant. The Panel finds that this does not constitute a bona fide offering or a legitimate noncommercial or fair use.”). The Panel therefore finds that Respondent fails to use the disputed domain name to make a bona fide offering of goods and services or for a legitimate or noncommercial or fair use per Policy ¶¶ 4(c)(i) or (iii). And the Panel finds that Respondent does not have rights or legitimate interests in the disputed domain name.
Respondent (who did not reply to Complainant’s contentions) has not presented any plausible explanation for its use of Complainant’s mark. In accordance with paragraph 14(b) of the Rules, the Panel shall draw such inferences from Respondent’s failure to reply as it considers appropriate. Accordingly, the Panel finds that Respondent did not have a legitimate use in mind when registering the disputed domain name.
Indeed, as already noted, Respondent is using the dispute domain name to host pay-per-click links to third parties that directly compete with Complainant. Such use of a disputed domain name may indicate bad faith per Policy ¶¶ 4(b)(iii) and/or (iv). See Lenovo (Beijing) Limited Corporation China v. jeonggon seo, FA1411001591638 (Forum Jan. 16, 2015) (finding that where the complainant operated in the computer industry and the respondent used the disputed domain name to offer competing computer related links, the respondent was disrupting the complainant’s business offerings in violation of Policy ¶ 4(b)(iii)); see also American Council on Education and GED Testing Service LLC v. Anthony Williams, FA1760954 (Forum Jan. 8, 2018) (“Respondent’s hosting of links to Complainant’s competitors demonstrates bad faith registration and use of the <geddiploma.org> domain name pursuant to Policy ¶ 4(b)(iv)”). Thus the Panel finds that Respondent registered and is using the disputed domain name in bad faith per Policy ¶¶ 4(b)(iii) and (iv).
Further, Respondent’s changing of a single letter from Complainant’s HSA BANK mark in the disputed domain name constitutes typosquatting. Typosquatting may be evidence of bad faith per Policy ¶ 4(a)(iii). Webster Financial Corporation and Webster Bank, National Association v. IS / ICS INC, FA 16070016833 (Forum Aug. 11, 2016) (“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. The conniving registrant wishes and hopes that Internet users will inadvertently type the malformed trademark or read the domain name and believe it is legitimately associated with the target trademark. In doing so, wayward Internet users are fraudulently directed to a web presence controlled by the confusingly similar domain name’s registrant.”). Consequently, the Panel finds bad faith registration and use on this ground also, per 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 <hdabank.com> domain name be TRANSFERRED from Respondent to Complainant.
Richard Hill, Panelist
Dated: January 4, 2019
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