CyraCom International, Inc. v. Carolina Rodrigues / Fundacion Comercio Electronico
Claim Number: FA2007001906947
Complainant is CyraCom International, Inc. (“Complainant”), represented by Rachel A. Nicholas of Lewis Roca Rothgerber Christie LLP, United States. Respondent is Carolina Rodrigues / Fundacion Comercio Electronico (“Respondent”), Panama.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <opscentercyracom.com>, registered with GoDaddy.com, 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.
Paul M. DeCicco, as Panelist.
Complainant submitted a Complaint to the Forum electronically on July 31, 2020; the Forum received payment on July 31, 2020.
On August 3, 2020, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <opscentercyracom.com> domain name is registered with GoDaddy.com, LLC and that Respondent is the current registrant of the name. GoDaddy.com, LLC has verified that Respondent is bound by the GoDaddy.com, 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 August 5, 2020, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of August 25, 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@opscentercyracom.com. Also on August 5, 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 August 27, 2020, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Paul M. DeCicco, 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 contends as follows:
Complainant provides phone and video interpretation services in the healthcare industry.
Complainant has rights in the CYRACOM mark through its registrations with the United States Patent and Trademark Office (“USPTO”).
Respondent’s <opscentercyracom.com> is confusingly similar to Complainant’s CYRACOM mark as it incorporates the mark entirely and merely adds the descriptive term “ops center” and the “.com” generic top-level domain (“gTLD”).
Respondent lacks rights or legitimate interests in the <opscentercyracom.com> domain name. Respondent is not commonly known by the at-issue domain name, nor has Complainant authorized or licensed Respondent to use its CYRACOM mark in the at-issue domain name. Respondent does not use the domain name for any bona fide offering of goods or services, nor for any legitimate noncommercial or fair use. Instead, Respondent attempts to phish for confidential information by redirecting users to a rotating series of websites involving security warnings.
Respondent registered and uses the <opscentercyracom.com> domain name in bad faith. Respondent disrupts Complainant’s business for commercial gain by using a rotating series of popups and websites to impersonate security software and phish for confidential user information. Respondent’s domain name causes initial interest confusion in being nearly identical to Complainant’s own “Ops Center” website. Finally, Respondent’s use of a WHOIS privacy service further contributes to a finding of bad faith.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant has trademark rights in CYRACOM.
Respondent is not affiliated with Complainant and is not authorized to use the CYRACOM mark in any capacity.
Respondent registered the at‑issue domain name after Complainant acquired trademark rights in CYRACOM.
Respondent uses the at-issue domain name to divert internet users to a rotating array of websites flagged with security warnings and phishes for confidential information.
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”).
The at-issue domain name is confusingly similar to a trademark in which Complainant has rights.
Complainant’s registration of the CYRACOM mark with the USPTO sufficiently demonstrates Complainant’s 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)).
Respondent’s <opscentercyracom.com> domain name incorporates Complainant’s entire CYRACOM trademark prefixed by the suggestive term “opscenter” (or terms “ops” and “center”) and ends with the generic top-level domain name “.com.” However, the differences between Complainant’s trademark and Respondent’s domain name do nothing to distinguish the at-issue domain name from Complainant’s trademark pursuant to Policy ¶ 4(a)(i). Therefore, the Panel concludes that Respondent’s <opscentercyracom.com> domain name is confusingly similar to Complainant’s CYRACOM trademark. See Wiluna Holdings, LLC v. Edna Sherman, FA 1652781 (Forum Jan. 22, 2016) (finding the addition of a generic term and gTLD is insufficient in distinguishing a disputed domain name from a mark under Policy ¶ 4(a)(i)).
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. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Forum Aug. 18, 2006). Since Respondent failed to respond, Complainant’s prima facie showing acts conclusively.
Respondent lacks both rights and legitimate interests in respect of the at-issue domain name. Respondent is not authorized to use Complainant’s trademark in any capacity and, as discussed below, there are no Policy ¶ 4(c) circumstances from which the Panel might find that Respondent has rights or interests in respect of the at‑issue domain name.
The WHOIS information for the at-issue domain name identifies the domain name’s registrant as “Carolina Rodrigues” and the record before the Panel contains no evidence tending to prove that Respondent is commonly known by the <opscentercyracom.com> domain name. The Panel therefore concludes that Respondent is not commonly known by the <opscentercyracom.com> domain name for the purposes of Policy ¶ 4(c)(ii). See Braun Corp. v. Loney, FA 699652 (Forum July 7, 2006) (concluding that the respondent was not commonly known by the disputed domain names where the WHOIS information, as well as all other information in the record, gave no indication that the respondent was commonly known by the domain names, and the complainant had not authorized the respondent to register a domain name containing its registered mark).
Additionally, Respondent uses the confusingly similar <opscentercyracom.com> domain name to display various webpages which rotate on successive visits to <opscentercyracom.com>. At least some webpages urge users to purchase/install fake security software for the purpose of gaining confidential information and/or seek to defraud consumers via the sale of fraudulent tech support services. Respondent’s use of the confusingly similar domain name in this way is neither a bona fide offering of goods or services under Policy ¶ 4 (c)(i), nor a non-commercial or fair use pursuant to Policy ¶ 4(c)(iii). See Harry Winston, Inc. v. Domain Admin / Whois Privacy Corp., FA 1749276 (Forum, Oct, 18, 2017) (holding that use of a domain name to redirect Internet users to a rotating series of third-party websites, some of which attempt to install malware on users’ computers, does not show the respondent has rights or legitimate interests in the domain name).
Given the forgoing, Complainant satisfies its initial burden and conclusively demonstrates Respondent’s lack of rights and lack of interests in respect of the at-issue domain name under Policy ¶ 4(a)(ii).
Respondent’s <opscentercyracom.com> domain name was registered and used in bad faith. As discussed below without limitation, bad faith circumstances are present which compel the Panel to conclude that Respondent acted in bad faith pursuant to paragraph 4(a)(iii) of the Policy.
As mention above regarding rights and legitimate interests, Respondent’s confusingly similar domain name is used to address an array of rotating webpages so that Respondent may deliver malware pretending to be security software to internet visitors in order to defraud such visitors through the sale of fraudulent tech support services. The malware is also used to phish for the private information of internet visitors. The at-issue domain name is further deceitfully associated with Complainant since Complainant uses <opscenter.cyracom.com> to address its legitimate interpreter operations (ops) center. Using the confusingly similar domain name to create the false impression of affiliation with Complainant in order to disrupt Complainant’s business via malware and a phishing scheme demonstrates Respondent’s bad faith registration and use of the <opscentercyracom.com> domain name per Policy ¶¶ 4(b)(iii) and (iv). See United States Postal Service v. Dursun BAYRAK, FA 1788459 (Forum, June 24, 2018) (“Respondent uses the at-issue domain name to reference various third party websites designed to distribute malware and perpetrate phishing schemes. For instance, on arrival at one of these websites visitors are presented with a notifications pretending to be from tech support that indicates that there are issues with the visitor’s PC that requires a payment to be fixed. Another pop-up window declares that ‘your computer has alerted us that it has been infected with a trojan and spyware’ and that personal information has been stolen. Fraudulent tech support services are offered to fix the contrived problems. Respondent’s use of the domain name is thus disruptive to Complainant’s business and indicates Respondent’s bad faith per Policy ¶¶ 4(b)(iii) and (iv), and otherwise.”). Moreover, the Panel notes that phishing, in itself, is indicative of a Respondent’s bad faith.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <opscentercyracom.com> domain name be TRANSFERRED from Respondent to Complainant.
Paul M. DeCicco, Panelist
Dated: August 27, 2020
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