National Debt Relief, LLC v. TaiBei Ivan Trading LLC / Kerwin Ivan
Claim Number: FA2001001877631
Complainant is National Debt Relief, LLC (“Complainant”), represented by Vladimir Yakovlev, United States. Respondent is TaiBei Ivan Trading LLC / Kerwin Ivan (“Respondent”), Taiwan.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <nationaldebtrelie.com>, <nayionaldebtrelief.com>, <nationaldebtreluef.com>, <nationaldebtreloef.com>, <nationaldebtrelied.com>, <nationldebtrelief.com> and <nationaldebtrelef.com>, registered with Namesilo, 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.
Charles A. Kuechenmeister, Panelist.
Complainant submitted a Complaint to the Forum electronically on January 4, 2020; the Forum received payment on January 4, 2020.
On January 7, 2020, Namesilo, Llc confirmed by e-mail to the Forum that the <nationaldebtrelie.com>, <nayionaldebtrelief.com>, <nationaldebtreluef.com>, <nationaldebtreloef.com>, <nationaldebtrelied.com>, <nationldebtrelief.com> and <nationaldebtrelef.com> domain names (the Domain Names) are registered with Namesilo, Llc and that Respondent is the current registrant of the names. Namesilo, Llc has verified that Respondent is bound by the Namesilo, 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 January 9, 2020, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint setting a deadline of January 29, 2020 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@nationaldebtrelie.com, postmaster@nayionaldebtrelief.com, postmaster@nationaldebtreluef.com, postmaster@nationaldebtreloef.com, postmaster@nationaldebtrelied.com, postmaster@nationldebtrelief.com, postmaster@nationaldebtrelef.com. Also on January 9, 2020, 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 February 4, 2020, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Charles A. Kuechenmeister 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 Names be transferred from Respondent to Complainant.
A. Complainant
Complainant operates a debt counselling and settlement negotiations service. It has rights in the NATIONAL DEBT RELIEF mark through its registration of that mark with the United States Patent and Trademark Office (“USPTO”) (Reg. No. 5,394,086, registered on Feb. 6, 2018). Respondent’s <nationaldebtrelie.com>, <nayionaldebtrelief.com>, <nationaldebtreluef.com>, <nationaldebtreloef.com>, <nationaldebtrelied.com>, <nationldebtrelief.com> and <nationaldebtrelef.com> Domain Names are confusingly similar to Complainant’s NATIONAL DEBT RELIEF mark, as each includes the mark in its entirety, merely misspelling the mark by changing or deleting a single letter, and adds the “.com” generic top-level domain (“gTLD”).
Respondent lacks rights or legitimate interests in the Domain Names because he registered them well after Complainant registered its NATIONAL DEBT RELIEF mark and he is guilty of typosquatting and phishing.
Respondent registered and uses the Domain Names in bad faith because they are clearly registered to emulate Complainant’s own domain name <nationaldebtrelief.com>. Further, all of the Domain Names resolve to web sites which contain links to other debt relief services but which links are either prevented by security gateways or terminate on empty pages.
B. Respondent
Respondent did not submit a Response in this proceeding.
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 Complainant to prove each of the following three elements to obtain an order cancelling or transferring the Domain Names:
(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, pursuant to paragraphs 5(f), 14(a) and 15(a) of the Rules the Panel will decide this administrative proceeding on the basis of Complainant's undisputed representations and draw such inferences it considers appropriate pursuant to paragraph 14(b) of the Rules. The Panel is entitled to accept all reasonable allegations set forth in a complaint. Nevertheless, the Panel may deny relief where a complaint contains mere conclusory or unsubstantiated arguments. eGalaxy Multimedia Inc. v. ON HOLD By Owner Ready To Expire, FA 157287 (Forum June 26, 2003) (“Because Complainant did not produce clear evidence to support its subjective allegations [. . .] the Panel finds it appropriate to dismiss the Complaint”), WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (WIPO Overview 3.0), at ¶ 4.3 (“In cases involving wholly unsupported and conclusory allegations advanced by the complainant, . . . panels may find that—despite a respondent’s default—a complainant has failed to prove its case.”).
The Panel finds as follows with respect to the matters at issue in this proceeding:
The NATIONAL DEBT RELIEF mark was registered to Complainant with the USPTO (Reg. No. 5,394,086) on February 6, 2018 (Complaint Annex A). Complainant’s registration of its mark with the USPTO is sufficient to establish its rights in that mark for the purposes of Policy ¶ 4(a)(i). DIRECTV, LLC v. The Pearline Group, FA 1818749 (Forum Dec. 30, 2018) (“Complainant’s ownership of a USPTO registration for DIRECTV demonstrates its rights in such mark for the purposes of Policy ¶ 4(a)(i).”).
Respondent’s <nationaldebtrelie.com>, <nayionaldebtrelief.com>, <nationaldebtreluef.com>, <nationaldebtreloef.com>, <nationaldebtrelied.com>, <nationldebtrelief.com> and <nationaldebtrelef.com> Domain Names are confusingly similar to Complainant’s NATIONAL DEBT RELIEF mark as each includes the mark in its entirety, merely misspelling it by changing or removing a single letter, and adds the “.com” gTLD. These changes are not sufficient to distinguish the Domain Names from Complainant’s mark for the purposes of Policy ¶ 4(a)(i). Am. Online, Inc. v. David, FA 104980 (Forum Apr. 10, 2002) (“The misspelling of a famous mark does not diminish the confusingly similar nature between the marks and the disputed domain names.”), Trip Network Inc. v. Alviera, FA 914943 (Forum Mar. 27, 2007) (concluding that the affixation of a gTLD to a domain name is irrelevant to a Policy ¶ 4(a)(i) analysis). The WIPO Overview 3.0 at ¶ 1.7, states that the test for confusing similarity “typically involves a side-by-side comparison of the domain name and the textual components of the relevant trademark to assess whether the mark is recognizable within the domain name.” Notwithstanding the changes described above, Complainant’s mark is clearly recognizable within the Domain Names.
For the reasons set forth above, the Panel finds that the Domain Names are identical or confusingly similar to the NATIONAL DEBT RELIEF mark, in which Complainant has substantial and demonstrated rights.
If a complainant makes a prima facie case that the respondent lacks rights or legitimate interests in the domain name under Policy ¶ 4(a)(ii), the burden of production shifts to respondent to come forward with evidence that it has rights or legitimate interests in it. Neal & Massey Holdings Limited v. Gregory Ricks, FA 1549327 (Forum Apr. 12, 2014) (“Under Policy ¶ 4(a)(ii), Complainant must first make out a prima facie case showing that Respondent lacks rights and legitimate interests in respect of an at-issue domain name and then the burden, in effect, shifts to Respondent to come forward with evidence of its rights or legitimate interests”). If a respondent fails to come forward with such evidence, the complainant’s prima facie evidence will be sufficient to establish that respondent lacks such rights or legitimate interests. If the respondent does come forward with such evidence, the Panel must assess the evidence in its entirety. At all times, the burden of proof remains on the complainant. WIPO Overview 3.0, at ¶ 2.1.
Policy ¶ 4(c) lists the following three nonexclusive circumstances, any one of which if proven can demonstrate a respondent’s rights or legitimate interests in a domain name for the purposes of Policy ¶ 4(a)(ii):
(i) before any notice to the respondent of the dispute, the respondent has used or has made demonstrable preparations to use the domain name or a name corresponding to the domain name in connection with a bona fide offering of goods or services; or
(ii) the respondent (as an individual, business or other organization) has been commonly known by the domain name, even if the respondent has acquired no trademark or service mark rights; or
(iii) the respondent is making a legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue.
Complainant asserts that Respondent has no rights or legitimate interests in the Domain Names because (i) Respondent registered them well after Complainant registered its NATIONAL DEBT RELIEF mark and (ii) he is guilty of typosquatting and phishing. These allegations are addressed as follows:
The Domain Names are all typosquatted versions of Complainant’s NATIONAL DEBT RELIEF mark. By simply changing or deleting a single letter in Complainant’s mark in each of the Domain Names, Respondent is guilty of typosquatting, which is the intentional misspelling of a protected trademark to take advantage of typing errors made by Internet users seeking the web sites of the owners of the mark. Registering a typosquatted domain name has been held to evidence a lack of rights and legitimate interests in the domain name for the purposes of Policy ¶ 4(a)(ii). Chegg Inc. v. yang qijin, FA1503001610050 (Forum Apr. 23, 2015) (“Users might mistakenly reach Respondent’s resolving website by misspelling Complainant’s mark. Taking advantage of Internet users’ typographical errors, known as typosquatting, demonstrates a respondent’s lack of rights or legitimate interests under Policy ¶ 4(a)(ii).”).
Complainant did not address the examples of ways in which a respondent might establish rights or legitimate interests in a domain name pursuant to Policy ¶ 4(c), but the evidence Complainant offered is sufficient to establish a prima facia case that Respondent has no such rights or interests. First, Respondent is not using the Domain Names in connection with a bona fide offering of goods or services within the meaning of Policy ¶ 4(c)(i) or for a legitimate noncommercial or fair use within the meaning of Policy ¶ 4(c)(iii). The web sites resolving from each of the Domain Names contain purported links to other debt relief services (Amended Complaint Annex B). There is no evidence of what happens if the visitor clicks on one or more of these links but the web sites are in a typical pay-per-click format, and it is evident that this is exactly what they are. Using a confusingly similar domain name to operate a pay-per-click web site does not qualify as a bona fide offering of goods or services for the purposes of Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use for the purposes of Policy ¶ 4(c)(iii)). Vance Int’l, Inc. v. Abend, FA 970871 (Forum June 8, 2007) (concluding that the operation of a pay-per-click website at a confusingly similar domain name does not represent a bona fide offering of goods or services or a legitimate noncommercial or fair use, regardless of whether or not the links resolve to competing or unrelated websites or if the respondent is itself commercially profiting from the click-through fees).
Second, the information furnished to the FORUM by the registrar lists the registrant of the Domain Names as “TaiBei Ivan Trading LLC / Kerwin Ivan.” Neither of these names bears any resemblance to any of the Domain Names. Evidence could, of course, in a given case demonstrate that the respondent is commonly known by a domain name different from the name in which it registered the domain name, e.g., the case of a domain name incorporating the brand name of a specific product offered by and associated with the respondent. In the absence of any such evidence, however, UDRP panels have consistently held that WHOIS evidence of a registrant name which does not correspond with the domain name is sufficient to prove that the respondent is not commonly known by the domain name. Guardair Corporation v. Pablo Palermo, FA1407001571060 (Forum Aug. 28, 2014) (holding that the respondent was not commonly known by the <guardair.com> domain name according to Policy ¶ 4(c)(ii), as the WHOIS information lists “Pablo Palermo” as registrant of the disputed domain name), 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 Panel is satisfied that Respondent has not been commonly known by the Domain Names as contemplated by Policy ¶ 4(c)(ii).
The evidence furnished by Complainant establishes the required prima facie case. On that evidence, and in the absence of any evidence from Respondent, the Panel finds that Respondent has no rights or legitimate interests in the Domain Names.
Policy ¶ 4(b) sets forth a nonexclusive list of four circumstances, any one of which if proven would be evidence of bad faith use and registration of a domain name. They are as follows:
(i) circumstances indicating that the respondent has registered or acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the complainant which is the owner of the trademark or service mark or to a competitor of that complainant, for valuable consideration in excess of the respondent’s documented out-of-pocket costs directly related to the domain name; or
(ii) the respondent has registered the domain name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that the respondent has engaged in a pattern of such conduct; or
(iii) the respondent has registered the domain name primarily for the purpose of disrupting the business of a competitor; or
(iv) by using the domain name, the respondent has intentionally attempted to attract, for commercial gain, Internet users to the respondent’s web site or other on-line location, by creating a likelihood of confusion with the complainant’s mark as to the source, sponsorship, affiliation or endorsement of the respondent’s web site or location or of a product of service on the respondent‘s web site or location.
The evidence of Respondent’s conduct discussed above in the rights or legitimate interests analysis also supports a finding of bad faith registration and use, based upon one or more of the foregoing grounds articulated in the Policy and upon additional grounds adopted by UDRP panels over the years. First, Respondent is clearly using the Domain Names to attract, for commercial gain, Internet users to its web sites by creating a likelihood of confusion with the Complainant’s mark as to the source, sponsorship, affiliation or endorsement of its web sites, as described in Policy ¶ 4(b)(iv). Respondent obtains commercial gain from its use of the Domain Names and the resolving web sites. Pay-per-click sites are common on the Internet. Under the most common forms of business arrangements relating to these sites, when a visitor to Respondent’s site clicks on one of the links which appear there, Respondent receives compensation from the various web site owners who are forwarded from the site. Most likely, Respondent receives compensation based upon the number of hits the downstream web site owners get from being linked to Respondent’s web site. AllianceBernstein LP v. Texas International Property Associates, Case No. D2008-1230 (WIPO, 2008) (the domain name resolved to a search directory site with links to third-party vendors and the panel inferred that the respondent received click-through-fees when site visitors clicked on those links), and Brownells, Inc. v. Texas International Property Associates, Case No. D2007-1211 (WIPO, 2007), (finding in similar cases that a respondent intentionally attempted to attract internet searchers for commercial gain). Complainant alleges, but offers no proof, that the links listed on Respondent’s sites do not actually redirect visitors to the linked sites because they are either blocked by security programs or terminate at blank pages. In any event even if Complainant’s allegations in this regard are correct, Respondent’s intent in using the Domain Names is to attract Internet traffic to its commercial sites and this is sufficient to establish bad faith for the purposes of Policy ¶ 4(b)(iv).
Although not argued by Complainant in the context of bad faith registration and use, Respondent’s obvious typosquatting is also grounds for a finding of bad faith. The fact that many of the misspellings involve keys which are immediately adjacent to each other on the keyboard or consist of simple omissions of letters strongly suggests that the misspellings are intentional. Policy ¶ 4(b) recognizes that mischief can manifest in many different forms and takes an open-ended approach to bad faith, listing some examples without attempting to enumerate all its varieties. Worldcom Exchange, Inc. v. Wei.com, Inc., WIPO Case No. D-2004-0955 (January 5, 2005). The non-exclusive nature of Policy ¶ 4(b) allows for consideration of additional factors in an analysis for bad faith, and typosquatting has, in and of itself, been held to be evidence of bad faith registration and use. Vanguard Trademark Holdings USA LLC v. Shuai Wei Xu / Xu Shuai Wei, FA 1784238 (Forum June 1, 2018) (finding the respondent engaged in typosquatting—and thus registered and used the at-issue domain names in bad faith—where the names consisted of the complainant’s mark with small typographical errors introduced therein).
Finally, typosquatting necessarily implicates another factor which has also, by itself, been held to constitute bad faith. It is evident that Respondent had actual knowledge of Complainant and its mark when it registered the Domain Names.[i] Complainant has been using its NATIONAL DEBT RELIEF mark since 2012 (Amended Complaint Annex A), and Respondent copied that mark with subtle misspellings into its Domain Names. Given the nonexclusive nature of Policy ¶ 4(b), registering a confusingly similar domain name with actual knowledge of a complainant’s rights in its mark has often been held to be evidence of bad faith registration and use for the purposes of Policy ¶ 4(a)(iii). Univision Comm'cns Inc. v. Norte, FA 1000079 (Forum Aug. 16, 2007) (rejecting the respondent's contention that it did not register the disputed domain name in bad faith since the panel found that the respondent had knowledge of the complainant's rights in the UNIVISION mark when registering the disputed domain name).
For the reasons set forth above, the Panel finds that Respondent registered and is using the Domain Name in bad faith within the meaning of Policy ¶ 4(a)(iii).
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 <nationaldebtrelie.com>, <nayionaldebtrelief.com>, <nationaldebtreluef.com>, <nationaldebtreloef.com>, <nationaldebtrelied.com>, <nationldebtrelief.com> and <nationaldebtrelef.com> Domain Names be TRANSFERRED from Respondent to Complainant
Charles A. Kuechenmeister, Panelist
February 5, 2020
[i] According to the information furnished to the Forum by the registrar and in Amended Complaint Annex B, the Domain Names were registered in January and June of 2018 and in January, March, May and June of 2019.
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