DECISION

 

William Marsh Rice University v. raul loya

Claim Number: FA2002001881728

 

PARTIES

Complainant is William Marsh Rice University (“Complainant”), represented by Giulio E. Yaquinto of Pirkey Barber PLLC, Texas, USA.  Respondent is raul loya (“Respondent”), Texas, USA.

 

REGISTRAR AND DISPUTED DOMAIN NAME

The domain name at issue is <ricefund.org>, registered with FastDomain Inc..

 

PANEL

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.

 

John J. Upchurch as Panelist.

 

PROCEDURAL HISTORY

Complainant submitted a Complaint to the Forum electronically on February 3, 2020; the Forum received payment on February 3, 2020.

 

On February 3, 2020, FastDomain Inc. confirmed by e-mail to the Forum that the <ricefund.org> domain name is registered with FastDomain Inc. and that Respondent is the current registrant of the name. FastDomain Inc. has verified that Respondent is bound by the FastDomain Inc. 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 February 4, 2020, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of February 24, 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@ricefund.org.  Also on February 4, 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 26, 2020, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed John J. Upchurch 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:

1.    Complainant, William Marsh Rice University, is a leading interdisciplinary research university devoted to generating significant positive potential for society by championing the spirit of inquiry, imagination, and individual action. Complainant has rights in the RICE mark based upon the registration with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 2,655,729, registered Dec. 3, 2002). See Compl. Ex. B. Respondent’s <ricefund.org> domain name is confusingly similar to Complainant’s mark as Respondent merely adds the generic term “fund” and the “.org” generic top-level domain (“gTLD”) to Complainant’s mark.

2.    Respondent does not have rights or legitimate interests in the <ricefund.org> domain name. Respondent is not permitted or licensed to use Complainant’s RICE mark and is not commonly known by the disputed domain name. Additionally, Respondent is not using the disputed domain name to make a bona fide offering of goods or services or for a legitimate non-commercial or fair use. Rather, Respondent uses the <ricefund.org> domain name to conduct a fraudulent phishing scheme.

3.    Respondent registered and uses the disputed domain name in bad faith. Respondent attempts to disrupt Complainant’s business by impersonating Complainant as part of an email phishing scheme. Additionally, Respondent fails to respond or comply with Complainant cease and desist letter. See Compl. Ex. F.

 

B.   Respondent:

1.    Respondent failed to submit a Response in this proceeding.

 

FINDINGS

1.    Respondent’s <ricefund.org> domain name is confusingly similar to Complainant’s RICE mark.

2.    Respondent does not have any rights or legitimate interests in the <ricefund.org> domain name.

3.    Respondent registered or used the <ricefund.org> domain name in bad faith.

 

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:

 

(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 set forth in a complaint; however, the Panel may deny relief where a complaint contains mere conclusory or unsubstantiated arguments. See WIPO Jurisprudential Overview 3.0 at ¶ 4.3; see also 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”).

 

Identical and/or Confusingly Similar

Complainant claims rights to the RICE mark based upon registration with the USPTO. Registration with USPTO sufficiently establishes rights in a mark under Policy ¶ 4(a)(i). See Haas Automation, Inc. v. Jim Fraser, FA 1627211 (Forum Aug. 4, 2015) (finding that Complainant’s USPTO registrations for the HAAS mark sufficiently demonstrate its rights in the mark under Policy ¶ 4(a)(i)). Complainant provides copies of its USPTO registrations for the RICE mark (e.g., Reg. No. 2,655,729, registered Dec. 3, 2002). See Compl. Ex. B. Therefore, the Panel finds that Complainant has rights in the RICE mark per Policy ¶ 4(a)(i).

 

Complainant next claims that Respondent’s <ricefund.org> domain name is confusingly similar to Complainant’s RICE mark as Respondent merely adds a modifier and a gTLD to the mark. Additions of a generic and/or descriptive terms and a gTLD to a complainant’s mark does not negate any confusing similarity between a disputed domain name and mark under Policy ¶ 4(a)(i). See Microsoft Corporation v. Thong Tran Thanh, FA 1653187 (Forum Jan. 21, 2016) (determining that confusing similarity exist where [a disputed domain name] contains Complainant’s entire mark and differs only by the addition of a generic or descriptive phrase and top-level domain, the differences between the domain name and its contained trademark are insufficient to differentiate one from the other for the purposes of the Policy.); see also 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). Complainant argues Respondent merely adds the term “fund”, and a “.org” gTLD to Complainant’s RICE mark. The Panel agrees with Complainant and find that the <ricefund.org> does not contain changes that would sufficiently distinguish it from the RICE mark per Policy ¶ 4(a)(i).

 

Rights or Legitimate Interests

Complainant must first make a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii), then the burden shifts to Respondent to show it does have rights or legitimate interests. See Advanced International Marketing Corporation v. AA-1 Corp, FA 780200 (Forum Nov. 2, 2011) (finding that a complainant must offer some evidence to make its prima facie case and satisfy Policy ¶ 4(a)(ii)); see also 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”).

 

Complainant argues that Respondent has no rights or legitimate interests in the <ricefund.org> domain name. Specifically, Complainant argues Respondent is not licensed or authorized to use the RICE mark and is not commonly known by the disputed domain name. Where a response is lacking, WHOIS information can support a finding that a respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii). See 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.). Additionally, lack of authorization to use a complainant’s mark may demonstrate the respondent is not commonly known by the disputed domain name. See Navistar International Corporation v. N Rahmany, FA1505001620789 (Forum June 8, 2015) (finding that the respondent was not commonly known by the disputed domain name where the complainant had never authorized the respondent to incorporate its NAVISTAR mark in any domain name registration). The WHOIS information of record identifies Respondent as “raul loya,” and there is no other evidence to suggest Respondent was authorized to use the RICE mark. The Panel therefore finds Respondent is not commonly known by the disputed domain name per Policy ¶ 4(c)(ii).

 

Moreover, Complainant argues that Respondent is not using the <ricefund.org> domain name in connection to a bona fide offering of goods or services or a legitimate noncommercial or fair use because Respondent attempts to impersonate Complainant as part of a fraudulent scheme. Use of an email address associated with the disputed domain name to pass off as a complainant in furtherance of phishing is not indicative of rights or legitimate interests in the name per Policy ¶¶ 4(c)(i) or (iii). See Abbvie, Inc. v. James Bulow, FA 1701075 (Forum Nov. 30, 2016) (“Respondent uses the at-issue domain name to pose as Complainant’s CEO by means of email addresses at the confusingly similar domain name in an attempt to determine Complainant’s ability to process a transfer. Using the domain name in this manner is neither a bona fide offering of goods and services under Policy ¶ 4(c)(i), nor a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii)”). Here, Complainant claims Respondent uses an email address associated with the disputed domain name to impersonate Complainant and sends phishing e-mails to Complainant’s customers that are designed to solicit donations for Complainant’s students under false pretenses. Complainant provides emails sent by Respondent concerning this alleged phishing scheme. See Compl. Ex. D. Thus, the Panel agrees that Respondent’s use of the domain name indicates it lacks rights and legitimate interests in the disputed domain name per Policy ¶¶ 4(c)(i) and (iii).

 

Registration and Use in Bad Faith

Complainant argues that Respondent has registered and uses the <ricefund.org> domain name in bad faith. Complainant alleges Respondent attempts to disrupt Complainant’s business. Specifically, Complainant argues Respondent is attempting to impersonate Complainant as part of an email phishing scheme, presumably for commercial gain. Use of a domain name to impersonate a complainant in furtherance of a fraudulent scheme may constitute bad faith pursuant to Policy ¶ 4(b)(iii) and/or (iv). See Abbvie, Inc. v. James Bulow, FA 1701075 (Forum Nov. 30, 2016) (“Respondent uses the <abbuie.com> domain name to impersonate Complainant’s CEO. Such use is undeniably disruptive to Complainant’s business and demonstrates bad faith pursuant to Policy ¶ 4(b)(iii), and/or Policy ¶ 4(b)(iv)”); see also Monsanto Co. v. Decepticons, FA 101536 (Forum Dec. 18, 2001) (finding that the respondent's use of <monsantos.com> to misrepresent itself as the complainant and to provide misleading information to the public supported a finding of bad faith). As previously mentioned, Complainant claims Respondent uses an email address associated with the disputed domain name to impersonate Complainant and sends phishing e-mails to Complainant’s customers that are designed to solicit donations for Complainant’s students under false pretenses. Complainant provides emails sent by Respondent concerning this alleged phishing scheme. See Compl. Ex. D. Therefore, the Panel finds that Respondent registered and uses the disputed domain name in bad faith per Policy ¶¶ 4(b)(iii) and/or (iv).

 

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 <ricefund.org> domain name be TRANSFERRED from Respondent to Complainant.

 

 

John J. Upchurch, Panelist

Dated:  March 10, 2020