DECISION

 

Wells Fargo & Company v. Domain Admin / Whois Privacy Corp.

Claim Number: FA1704001725500

 

PARTIES

Complainant is Wells Fargo & Company (“Complainant”), represented by Felicia J. Boyd of Barnes & Thornburg LLP, Minnesota, USA.  Respondent is Domain Admin / Whois Privacy Corp. (“Respondent”), Bahamas.

 

REGISTRAR AND DISPUTED DOMAIN NAME 

The domain name at issue is <wellswargo.com> (‘(the Domain Name’) registered with Internet Domain Service BS Corp.

 

PANEL

The undersigned certifies that he or she has acted independently and impartially and to the best of his or her knowledge has no known conflict in serving as Panelist in this proceeding.

 

Dawn Osborne of Palmer Biggs, IP as Panelist.

 

PROCEDURAL HISTORY

Complainant submitted a Complaint to the Forum electronically on April 6, 2017; the Forum received payment on April 7, 2017.

 

On April 10, 2017, Internet Domain Service BS Corp confirmed by e-mail to the Forum that the <wellswargo.com> domain name is registered with Internet Domain Service BS Corp and that Respondent is the current registrant of the name.  Internet Domain Service BS Corp has verified that Respondent is bound by the Internet Domain Service BS Corpregistration 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 10, 2017, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of May 1, 2017 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@wellswargo.com.  Also on April 10, 2017, 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 5, 2017, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Dawn Osborne of Palmer Biggs I 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.

 

RELIEF SOUGHT

Complainant requests that the domain name be transferred from Respondent to Complainant.

 

PARTIES' CONTENTIONS

A.   Complainant

 

Complainant’s contentions can be summarised as follows:

 

Complainant is a financial services company with exclusive rights in the mark WELLS FARGO which is famous and is registered in, inter alia, the USA for financial services with first use in commerce recorded as 1852. Its logo is also registered and it owns wellsfargo.com at which it has operated its web site as an interface with customers since 1994.

 

The Domain Name is confusingly similar to the famous WELLS FARGO mark being a misspelling of it merely replacing the ‘f’ with the letter ‘w’ and adding the gTLD .com.

 

Respondent has no rights or legitimate interest in the Domain Name. It has not been commonly known by the Domain Name.  Respondent has no intellectual property rights in the Domain Name and has never been a licensee of Complainant. Respondent has not used the Domain Name for a bona fide purpose but has redirected Internet Users to unauthorised surveys using Complainant’s logo and links to providers of competing products.

 

The Domain Name was registered in 2005 when Complainant’s famous WELLS FARGO mark was already distinctive and internationally famous. Typosquatting is per se evidence of bad faith.

 

The Domain Name was used and registered in bad faith to attract Internet users by creating a likelihood of confusion with Complainant’s WELLS FARGO mark for financial gain by offering competing commercial services.

 

 

 

 

B. Respondent

 

Respondent failed to submit a Response in this proceeding.

 

 

FINDINGS

 

Complainant is a financial services company and the owner of the mark WELLS FARGO which is famous and is registered in, inter alia, the USA for financial services with first use in commerce recorded as 1852. Its logo is also registered and it owns wellsfargo.com at which it has operated its web site as an interface with customers since 1994.

 

The Domain Name registered in 2005 has redirected Internet Users to unauthorised surveys, links to providers of competing products and has used Complainant’s logo.

 

 

DISCUSSION

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:

 

 

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 consists of a sign highly similar to Complainant's mark WELLS FARGO (with a ‘w’ used instead of the ‘f’ in the Complainant’s mark) and the gTLD .com. Accordingly the Domain Name appears to be a typosquatted version of Complainant’s registered mark WELLS FARGO.

Panels have commonly held that the changing of one letter in a mark to result in a misspelled domain name is not a change sufficient to remove a domain name from confusing similarity (See Omaha Steaks International Inc. v DN Manager/ Whois-Privacy.Net Ltd, FA 1610122 (Forum July 9, 2015)(finding that such alterations of the mark by one letter do not save the domain name from confusing similarity).

The gTLD .com does not serve to distinguish the Domain Name from the WELLS FARGO mark, which is confusingly similar to the Domain Name. See Red Hat Inc v Haecke FA 726010 (Forum July 24, 2006) (concluding that the mere addition of the gTLD was insufficient to differentiate the disputed domain name from the mark).

Accordingly, the Panel holds that the Domain Name is confusingly similar for the purposes of the Policy with a mark in which Complainant has rights.

As such the Panel holds that Paragraph 4 (a) (i) of the Policy has been satisfied.

 

Rights or Legitimate Interests

 

Complainant has not given Respondent permission to use the Domain Name. Respondent does not appear to be commonly known by the Domain Name, is not using it to offer bona fide goods and services and is not making a legitimate non commercial or fair use of the name. The site appears to be set up for commercial benefit to compete with Complainant using the latter's intellectual property rights to make a profit by pointing to third party links competing with Complainant. See ALPITOUR SpA v Albloushi FA 888651 (Forum Feb 26, 2007) (rejecting the Respondent's contentions of rights and legitimate interests because the respondent was merely using the domain name to operate a web site containing links to various competing commercial web sites which the panel did not find to be bona fide use in relation to goods and service under the Policy. )

 

Additionally the Domain Name appears to be a typosquatted version of Complainant's domain name chosen in the hope that a customer might mistakenly reach Respondent's web site by mistakenly typing additional letters when intending to access Complainant’s site. See Amazon.com, Inc v JJ Domains, FA 514939 (Forum Sept 2, 2005)(respondent lacks rights and legitimate interests in the www-amazon.com domain name because the addition of 'www-' constitutes typosquatting)

 

As such the Panel find 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

 

Complainant has provided evidence that Respondent has attempted to disrupt Complainant’s business by its use of the Domain name providing links that resolve to third party commercial sites that compete directly with Complainant which is bad faith under s4 (b)(iii) of the Policy. See Univ. of Texas SYs. v Smith (finding that using the resolving web site to divert Internet users to Complainant's competitors constitutes bad faith registration and use under the Policy. )

 

Complainant also alleges that Respondent's  use of the site is commercial and he is using it to make a profit by linking to third party web sites that compete with Complainant in a confusing manner. The use is confusing in that visitors to the site might reasonably believe it is connected to or approved by Complainant offering services under a Domain Name which is a typosquatted version of Complainant’s Domain Name. The use of Complainant’s logo suggests Respondent is aware of Complainant and its goods and business. Accordingly, the Panel holds that Respondent has intentionally attempted to attract for commercial gain Internet users to its website by creating a likelihood of confusion with Complainant's trade marks as to the source, sponsorship, affiliation or endorsement of the web site pursuant to para 4 (b)(iv) of the Policy. See Asbury Auto Group Inc v Tex. Int'l Prop Assocs FA 958542 (Forum May 29, 2007) finding that the respondent's use of the disputed domain name to advertise car dealerships that competed with the complainant's business would likely lead to confusion amongst Internet users as to the sponsorship or affiliation of those competing dealerships and was therefore evidence of bad faith and use).

Finally, typosquatting itself is evidence of relevant bad faith registration and use. See Vanguard Group Inc. v IQ Mgmt. Corp FA 328127 (Forum Oct 28, 2004)(By engaging in typosquatting respondent has registered and used the vangard.com domain name in bad faith pursuant to Policy 4(a) (iii).

 

As such, the Panel holds that 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.

 

 

DECISION

Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.

 

Accordingly, it is Ordered that the <wellswargo.com> domain name be TRANSFERRED from Respondent to Complainant.

 

Dawn Osborne, Panelist

Dated:  May 17, 2017