Compassion International, Inc. v. JONATHAN TETTEH
Claim Number: FA2002001882519
Complainant is Compassion International, Inc. (“Complainant”), represented by Daniel Martens, Texas, USA. Respondent is JONATHAN TETTEH (“Respondent”), Ghana.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <compassionuk.info>, registered with NameCheap, Inc..
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.
Hon. Karl v. Fink (Ret.) as Panelist.
Complainant submitted a Complaint to the Forum electronically on February 7, 2020; the Forum received payment on February 7, 2020.
On February 10, 2020, NameCheap, Inc. confirmed by e-mail to the Forum that the <compassionuk.info> domain name is registered with NameCheap, Inc. and that Respondent is the current registrant of the name. NameCheap, Inc. has verified that Respondent is bound by the NameCheap, 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 11, 2020, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of March 2, 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@compassionuk.info. Also on February 11, 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 March 5, 2020, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Hon. Karl V. Fink (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 is a faith-based, charitable nonprofit organization committed to ending child poverty and providing disaster relief around the globe. Complainant has rights in the COMPASSION mark through its registration of the mark with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 1,552,859, registered Aug. 22, 1989). Respondents <compassionuk.info> domain name is confusingly similar to Complainant’s mark as Respondent merely adds the common abbreviation for the United Kingdom (“uk”) and the “.info” generic top-level domain (“gTLD”).
Respondent has no rights or legitimate interests in the <compassionuk.info> domain name as Respondent is not commonly known by the disputed domain name nor has Respondent been licensed, authorized, or otherwise permitted by Complainant to use Complainant’s mark. Furthermore, Respondent’s use is not a bona fide offering of goods or services, nor a legitimate noncommercial or fair use, as Respondent is using email to pass off as Complainant to defraud others at Complainant’s expense.
Respondent registered and uses the <compassionuk.info> domain name in bad faith. Specifically, Respondent has an established pattern of bad faith registrations. Additionally, Respondent is attempting to disrupt Complainant’s business by deceiving others via email. Furthermore, Respondent is passing off as Complainant to further a fraudulent scheme. Finally, Respondent had actual or constructive knowledge of Complainant’s rights in the COMPASSION mark at the time of registration.
B. Respondent
Respondent failed to submit a Response in this proceeding.
For the reasons set forth below, based upon Complainant’s uncontested allegations and evidence, the Panel finds that Complainant is entitled to the requested relief of transfer of the <compassionuk.info> domain name.
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”).
Complainant has rights in the COMPASSION mark through its registration of the mark with the “USPTO (e.g., Reg. No. 1,552,859, registered Aug. 22, 1989). Registration with the USPTO is sufficient to demonstrate rights in a mark under Policy ¶ 4(a)(i). See DIRECTV, LLC v. The Pearline Group, FA 1818749 (Forum Dec. 30, 2018) (“Complainant’s ownership of a USPTO registration for DIRECTV demonstrate its rights in such mark for the purposes of Policy ¶ 4(a)(i).”). The Panel finds that the Complainant has rights in the COMPASSION mark under Policy ¶ 4(a)(i).
Complainant argues Respondent’s <compassionuk.info> domain name is confusingly similar to Complainant’s mark as Respondent merely adds the common abbreviation for the United Kingdom (“uk”) and the “.info” gTLD. The addition of geographic terms and a gTLD does not sufficiently distinguish a disputed domain name from a complainant’s mark under Policy ¶ 4(a)(i). See Bloomberg Finance L.P. v. Nexperian Holding Limited, FA 1782013 (Forum June 4, 2018) (“Where a relevant trademark is recognizable within a disputed domain name, the addition of other terms (whether descriptive, geographical, pejorative, meaningless, or otherwise) does not prevent a finding of confusing similarity under the first element.”). Complainant further asserts that the addition of the country abbreviation “uk” increases the chance of association with Complainant and Complainant’s UK affiliate, Compassion UK. See Avaya Inc. v. Evelyn Dayda / Avaya Unlimited Sources LLC, FA 1611255 (Forum May 4, 2015) (finding that as “the ‘usa’ portion of the disputed domain name is a generic geographic term, the internet user will assume that the domain name deals with the activities of Complainant in the USA and that it will lead to a website dealing with that subject. The domain name is therefore confusingly similar to the AVAYA mark and the Panel so finds.”). The Panel finds that Respondent’s <compassionuk.info> domain name is confusingly similar to Complainant’s mark under Policy ¶ 4(a)(i).
Complainant has proved this element.
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”). The Panel finds that Complainant has made a prima facie case.
Complainant argues that Respondent has no rights or legitimate interests in the <compassionuk.info> domain name as Respondent is not commonly known by the disputed domain name nor has Respondent been licensed or authorized by the Complainant to use Complainant’s mark. Where a response is lacking, relevant WHOIS information can be used as evidence to show a respondent is or is not commonly known by the disputed domain name under 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). Additionally, lack of authorization to use a complainant’s mark may indicate that the respondent lacks rights or legitimate interest in a disputed domain name. See Emerson Electric Co. v. golden humble / golden globals, FA 1787128 (Forum June 11, 2018) (“lack of evidence in the record to indicate a respondent is authorized to use [the] complainant’s mark may support a finding that [the] respondent does not have rights or legitimate interests in the disputed domain name per Policy ¶ 4(c)(ii)”). The WHOIS of record identifies the Respondent as “JONATHAN TETTEH” and no information in the record indicates that Respondent was authorized to use Complainant’s mark or was commonly known by the disputed domain name. The Panel finds that Respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii).
Complainant argues that Respondent fails to use the <compassionuk.info> domain name in connection with a bona fide offering of goods or services or a legitimate noncommercial or fair use. Rather, Respondent is using email to pass off as Complainant to further a fraudulent email scheme. Using email to deceive recipients into believing the respondent is the complainant to further a fraudulent scheme is not a bona fide offering of goods or services or a legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) or (iii). See Emerson Electric Co. v. Adilcon Rocha, FA 1735949 (Forum July 11, 2017) (finding that respondent’s attempt to pass off as complainant through emails does not constitute a bona fide offering of goods or services and, as such, respondent lacked rights or legitimate interests in the disputed domain name); see also Microsoft Corporation v. Terrence Green / Whois Agent / Whois Privacy Protection Service, Inc., FA 1661030 (Forum Apr. 4, 2016) (finding the respondent’s use of the disputed domain names to send fraudulent emails purportedly from agents of complainant to be neither a bona fide offering of goods or services under Policy ¶ 4(c)(i), nor a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii)). Complainant provided copies of emails sent by the Respondent to different travel agencies in an attempt to get airline tickets at Complainant’s expense. The Panel finds that Respondent fails to use the <compassionuk.info> domain name in connection with a bona fide offering of goods or services or a legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) or (iii) and Respondent has no rights or legitimate interests in respect of the domain name.
Complainant has proved this element.
Complainant argues Respondent registered and uses the <compassionuk.info> domain name in bad faith. Specifically, Respondent is attempting to disrupt Complainant’s business by impersonating agents of Complainant via email. Using a disputed domain name for the mere purpose of deceiving email recipients into believing the respondent is the complainant is evidence of bad faith under Policy ¶ 4(b)(iii). See Chevron Intellectual Property, LLC v. Jack Brooks, FA 1635967 (Forum Oct. 6, 2015) (finding that Respondent’s use of <chevron-corps.com> to impersonate an executive of Complainant in emails is in opposition to Complainant and is therefore in bad faith under Policy ¶ 4(b)(iii)). Complainant provided copies of emails sent by the Respondent to different travel agencies in an attempt to get airline tickets at Complainant’s expense. This is evidence that Respondent registered and used the <compassionuk.info> domain name in bad faith under Policy ¶ 4(b)(iii).
Complainant argues Respondent registered and uses the <compassionuk.info> domain name in bad faith as Respondent is attempting to pass off as Complainant to further a fraudulent scheme. Using a disputed domain to send deceptive emails with the goal of passing off as a complainant and furthering a fraudulent or phishing scheme is evidence of bad faith under Policy ¶ 4(b)(iv). See Qatalyst Partners LP v. Devimore, FA 1393436 (Forum July 13, 2011) (finding that using the disputed domain name as an e-mail address to pass itself off as the complainant in a phishing scheme is evidence of bad faith registration and use): see also 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)”). Complainant provided copies of emails sent by the Respondent to different travel agencies in an attempt to get airline tickets at Complainant’s expense. This is evidence that Respondent registered and used the <compassionuk.info> domain name in bad faith under Policy ¶ 4(b)(iv).
Complainant argues that Respondent had knowledge of Complainant’s rights in the COMPASSION mark at the time of registering the <compassionuk.info> domain name. The Panel may disregard arguments of bad faith based on constructive notice as UDRP case precedent declines to find bad faith as a result of constructive knowledge. See Orbitz Worldwide, LLC v. Domain Librarian, FA 1535826 (Forum Feb. 6, 2014) (“The Panel notes that although the UDRP does not recognize ‘constructive notice’ as sufficient grounds for finding Policy ¶ 4(a)(iii) bad faith, the Panel here finds actual knowledge through the name used for the domain and the use made of it.”). The Panel may choose to determine whether Respondent had actual knowledge of Complainant's rights in the mark prior to registering the disputed domain name as actual knowledge can adequately demonstrate bad faith under Policy ¶ 4(a)(iii). See iFinex Inc. v. xu shuaiwei, FA 1760249 (Forum Jan. 1, 2018) (“Respondent’s prior knowledge is evident from the notoriety of Complainant’s BITFINEX trademark as well as from Respondent’s use of its trademark laden domain name to direct internet traffic to a website which is a direct competitor of Complainant”). To support this assertion, Complainant points to its trademark registrations and the fact that Respondent impersonates Complainant to further a fraudulent scam. The Panel finds that Respondent did have actual knowledge of Complainant’s right in its mark, and registered and uses the domain name in bad faith under Policy ¶ 4(a)(iii).
Complainant has proved this element.
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 <compassionuk.info> domain name be TRANSFERRED from Respondent to Complainant.
Hon. Karl V. Fink (Ret.) Panelist
March 10, 2020
Click Here to return to the main Domain Decisions Page.
Click Here to return to our Home Page