Wells Fargo & Company v. anil kumar
Claim Number: FA2009001913001
Complainant is Wells Fargo & Company (“Complainant”), represented by Felicia J. Boyd of Norton Rose Fulbright US LLP, USA. Respondent is anil kumar (“Respondent”), Kansas, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <wellsfargodealerserviceslogin.us>, registered with Dynadot, 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.
Hon. Karl V. Fink (Ret.) as Panelist.
Complainant submitted a Complaint to the Forum electronically on September 18, 2020; the Forum received payment on September 18, 2020.
On September 21, 2020, Dynadot, LLC confirmed by e-mail to the Forum that the <wellsfargodealerserviceslogin.us> domain name is registered with Dynadot, LLC and that Respondent is the current registrant of the name. Dynadot, LLC has verified that Respondent is bound by the Dynadot, LLC registration agreement and has thereby agreed to resolve domain disputes brought by third parties in accordance with the U.S. Department of Commerce’s usTLD Dispute Resolution Policy (the “Policy”).
On September 22, 2020, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of October 13, 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@wellsfargodealerserviceslogin.us. Also on September 22, 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 October 19, 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 usTLD 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 usTLD Policy, usTLD 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 financial services corporation. Complainant has rights in the WELLS FARGO mark through its registration of the mark with multiple trademark agencies around the world, including the United States Patent and Trademark Office (“USPTO”) (e.g. Reg. No. 779,187, registered Oct. 27, 1964). Respondent’s <wellsfargodealerserviceslogin.us> domain name is identical or confusingly similar to Complainant’s mark as it consists of Complainant's WELLS FARGO mark and the generic terms "dealer," "services," and "login," and the ".us" country-code top-level domain ("ccTLD").
Respondent lacks rights or legitimate interests in the <wellsfargodealerserviceslogin.us> domain name. There is no evidence that Respondent is commonly known by the disputed domain name. Respondent fails to use the disputed domain name in connection with a bona fide offering of goods or services or legitimate noncommercial or fair use. The disputed domain name directs internet users to a webpage incorporating Complainant's mark, screenshots of Complainant's website, and copyrighted photographs in an apparent phishing attempt.
Respondent registered and uses the <wellsfargodealerserviceslogin.us> domain name in bad faith. Respondent incorporates Complainant's marks and copyrighted images on the resolving webpage in an attempt to attract internet users away from Complainant for Respondent's financial gain. Respondent uses the domain name to attempt to collect personal information from visitors to the website or install malicious software. Respondent must have been aware of Complainant's mark given Respondent's use of Complainant's logos, photographs, and screenshots on its website.
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 <wellsfargodealerserviceslogin.us> 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 in bad faith or is being used in bad faith.
Given the similarity between the Uniform Domain Name Dispute Resolution Policy (“UDRP”) and the usTLD Policy, the Panel will draw upon UDRP precedent as applicable in rendering its decision.
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 claims rights in the WELLS FARGO mark based on registration of the mark with multiple trademark agencies and provides its registration certificate with the USPTO (e.g. Reg. No. 779,187, registered Oct. 27, 1964). Registration of a mark with the USPTO sufficiently confers a complainant’s rights in a mark for the purposes of Policy ¶ 4(a)(i). See Liberty Global Logistics, LLC v. damilola emmanuel / tovary services limited, FA 1738536 (Forum Aug. 4, 2017) (“Registration of a mark with the USPTO sufficiently establishes the required rights in the mark for purposes of the Policy.”). The Panel finds that Complainant has established rights in the WELLS FARGO mark for the purposes of Policy ¶ 4(a)(i).
Complainant argues that Respondent’s <wellsfargodealerserviceslogin.us> domain name is identical or confusingly similar to Complainant’s mark as it consists of Complainant's WELLS FARGO mark and the generic terms "dealer," "services," and "login," and the ".us" ccTLD. The addition of generic terms and a top level domain to a mark generally fails to distinguish a domain name for the purposes of Policy ¶ 4(a)(i). See MTD Products Inc v J Randall Shank, FA 1783050 (Forum June 27, 2018) (“The disputed domain name is confusingly similar to Complainant’s mark as it wholly incorporates the CUB CADET mark before appending the generic terms ‘genuine’ and ‘parts’ as well as the ‘.com’ gTLD.”). The Panel finds that the <wellsfargodealerserviceslogin.us> domain name is confusingly similar to the 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”).
Complainant asserts that Respondent lacks rights or legitimate interests in the <wellsfargodealerserviceslogin.us> domain name because there is no evidence that Respondent is commonly known by the disputed domain name. WHOIS information may be used to determine whether a respondent is commonly known by the disputed domain name under Policy ¶ 4(c)(iii). See Amazon Technologies, Inc. v. LY Ta, FA 1789106 (Forum June 21, 2018) (concluding a respondent has no rights or legitimate interests in a disputed domain name where the complainant asserted it did not authorize the respondent to use the mark, and the relevant WHOIS information indicated the respondent is not commonly known by the domain name). Additionally, lack of authorization to use a complainant’s mark may indicate that the respondent is not commonly known by the 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 information for the disputed domain name lists the registrant as “anil kumar,” and there is no other evidence to suggest that Respondent was authorized to use the WELLS FARGO mark. The Panel finds that Respondent is not commonly known by the disputed domain name per Policy ¶ 4(c)(iii).
There is nothing in the available evidence which indicates that Respondent has rights in a mark identical to the disputed domain name, which would serve to satisfy Policy ¶ 4(c)(i). See Pepsico, Inc. v. Becky, FA 117014 (Forum Sept 3, 2002) (holding that because the respondent did not own any trademark service marks reflecting the <pepsicola.us> domain name, it had no rights or legitimate interests pursuant to Policy ¶ 4(c)(i)).
Complainant also alleges Respondent fails to use the <wellsfargodealerserviceslogin.us> domain name in connection with a bona fide offering of goods or services or legitimate noncommercial or fair use as the disputed domain name directs internet users to a webpage incorporating Complainant's mark, screenshots of Complainant's website, and copyrighted photographs in an apparent phishing attempt. The use of a domain name to pass off as a complaint in furtherance of phishing does not constitute a bona fide offering of goods or services or legitimate noncommercial or fair use under Policy ¶¶ 4(c)(ii) or (iv). See DaVita Inc. v. Cynthia Rochelo, FA 1738034 (Forum July 20, 2017) (”Passing off in furtherance of a phishing scheme is not considered a bona fide offering of goods or services or legitimate noncommercial or fair use.”); see also Ripple Labs Inc. v. Jessie McKoy / Ripple Reserve Fund, FA 1790949 (Forum July 9, 2018) (finding the respondent did not use the domain name to make a bona fide offering of goods or services per Policy ¶ 4(c)(i) or for a legitimate noncommercial or fair use per Policy ¶ 4(c)(iii) where the website resolving from the disputed domain name featured the complainant’s mark and various photographs related to the complainant’s business). Complainant provides screenshots of the webpage of the domain name which contain Complainant's mark and other content related to Complainant. Complainant argues that the contact page on the website links to an email address suggesting it is associated with Complainant when it is not and this is likely a phishing attempt. The Panel finds that Respondent is not using the domain name for a bona fide offering of goods or services or legitimate noncommercial or fair use under Policy ¶¶ 4(c)(ii) or (iv) 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 <wellsfargodealerserviceslogin.us> domain name in bad faith as Respondent incorporates Complainant's mark and copyrighted images on the resolving webpage in an attempt to attract internet users away from Complainant for Respondent's financial gain and uses the domain name to attempt to collect personal information from visitors to the website or install malicious software. Passing off as a complainant in an attempt at phishing can be indicative of bad faith registration and use under Policy ¶ 4(b)(iv). See Ripple Labs Inc. v. Jessie McKoy / Ripple Reserve Fund, FA 1790949 (Forum July 9, 2018) (finding bad faith per Policy ¶¶ 4(b)(iii) and (iv) where the respondent used the disputed domain name to resolve to a website upon which the respondent passes off as the complainant and offers online cryptocurrency services in direct competition with the complainant’s business); see also Amazon Technologies, Inc. v. jaskima smith, FA 1750160 (Forum Oct. 26, 2017) (finding the respondent registered and used the disputed domain name in bad faith to pass off as the complainant in an attempt to gain personal information from users who mistakenly access the website). Complainant provides screenshots of the webpage of the domain name which contain Complainant's mark and other content related to Complainant. Complainant argues that the contact page on the website links to an email address suggesting it is associated with Complainant when it is not and this is likely a phishing attempt. This is evidence that Respondent registered and uses the domain name in bad faith under Policy ¶ 4(b)(iv).
Complainant asserts that Respondent must have been aware of Complainant's mark given Respondent's use of Complainant's trademarks, photographs, and screenshots on its website and thus registered the domain name in bad faith. Passing off as a complainant can be used to show actual knowledge of a complainant's rights in a mark at registration and therefore registration in bad faith. See Spectrum Brands, Inc. v. Guo Li Bo, FA 1760233 (Forum Jan. 5, 2018) (“e[T]he fact Respondent registered a domain name that looked identical to the SPECTRUM BRANDS mark and used that as an email address to pass itself off as Complainant shows that Respondent knew of Complainant and its trademark rights at the time of registration.”). Complainant provides screenshots of the webpage of the domain name which contain Complainant's mark and other content related to Complainant. The Panel finds that Respondent had knowledge of Complainant's trademark rights and registered and uses the domain name in bad faith.
Complainant has proved this element.
Complainant having established all three elements required under the usTLD Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is ORDERED that the <wellsfargodealerserviceslogin.us> domain name be TRANSFERRED from Respondent to Complainant.
______________________________________________________________
Hon. Karl V. Fink (Ret.) Panelist
October 26, 2020
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