Bank of America Corporation v. Dan Siebels / Leonard Anderson / Rory Guidrey
Claim Number: FA2009001914955
Complainant is Bank of America Corporation (“Complainant”), represented by Georges Nahitchevansky of Kilpatrick Townsend & Stockton LLP, United States. Respondent is Dan Siebels / Leonard Anderson / Rory Guidrey (“Respondent”), United States.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <sync-boa.com>, <sso-boa.com>, and <sso-boa.net> (the “Disputed Domain Names”), registered with NameCheap, Inc.
The undersigned certifies that she has acted independently and impartially and to the best of her knowledge has no known conflict in serving as Panelist in this proceeding.
Lynda M. Braun as Panelist.
Complainant submitted a Complaint to the Forum electronically on September 28, 2020; the Forum received payment on September 28, 2020.
On September 28, 2020, NameCheap, Inc. confirmed by e-mail to the Forum that the <sync-boa.com>, <sso-boa.com>, and <sso-boa.net> Disputed Domain Names are registered with NameCheap, Inc. and that Respondent is the current registrant of the names. 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 October 5, 2020, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of October 26, 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@sync-boa.com, postmaster@sso-boa.com, postmaster@sso-boa.net. Also on October 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 October 29, 2020, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Lynda M. Braun 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 Disputed Domain Names be transferred from Respondent to Complainant.
A. Complainant
The Complainant is one of the world’s largest financial institutions, providing banking, investment, wealth management, and other financial products and services, including investment banking and trading. In the United States alone, Complainant serves 49 million consumers and small businesses with approximately 5,000 retail banking offices. With approximately 208,000 employees, the Complainant serves clients in over 150 countries through operations in 35 countries.
Complainant has rights in the BOFA and BA marks based on registration with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 4,210,429, registered on September 18, 2012; Reg. No. 3,264,638, registered on May 1, 2007) (hereinafter the “BOFA and BA Marks”).
Respondent’s <sync-boa.com>, <sso-boa.com>, and <sso-boa.net> Disputed Domain Names are confusingly similar to the BOFA and BA Marks, Respondent does not have rights or legitimate interests in the Disputed Domain Names, and the Respondent registered and is using the Disputed Domain Names in bad faith.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant holds trademark rights in the BOFA and BA Marks. The Panel finds that the Disputed Domain Names is confusingly similar to Complainant’s Bank of America Mark. Further, Complainant has established that Respondent lacks rights or legitimate interests in the use of the Disputed Domain Names and that Respondent registered and is using the Disputed Domain Names in bad faith.
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”).
PRELIMINARY ISSUE: MULTIPLE RESPONDENTS
In the instant proceedings, Complainant has alleged that the entities which control the Disputed Domain Names at issue are effectively controlled by the same person and/or entity, which is operating under several aliases. Paragraph 3(c) of the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”) provides that a “complaint may relate to more than one domain name, provided that the domain names are registered by the same domain name holder.”
Accordingly, the Panel finds that Policy ¶ 4(a)(i) has been established by Complainant.
The Panel finds that Respondent has no rights or legitimate interests in the Disputed Domain Names. Under the Policy, Complainant is required to make out a prima facie case that Respondent lacks rights or legitimate interests in the Disputed Domain Names. Once such a prima facie case is made, Respondent carries the burden of demonstrating rights or legitimate interests in the disputed domain name. See 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”). In this case, Respondent did not carry its burden to come forward with evidence of its rights or legitimate interests in the disputed domain name as it did not respond to the Complaint, but given the facts of this case, the Panel finds that Respondent would have been hard-pressed to furnish availing arguments had it chosen to respond:
Specifically, Respondent is not commonly known by the Disputed Domain Names, Complainant has not authorized, licensed, or otherwise permitted Respondent to use the BOFA and BA Marks and Respondent has no relationship, affiliation, connection, endorsement or association with Complainant. Furthermore, Respondent fails to use the Disputed Domain Name in connection with a bona fide offering of goods or services, or in connection with a legitimate noncommercial or fair use because Respondent appears to be part of a phishing scheme to mislead unsuspecting consumers into disclosing their confidential login information. Such use of the Disputed Domain Names does not, and cannot, constitute a legitimate interest or bona fide use. Crow v. LOVEARTH.net, FA 203208 (Forum Nov. 28, 2003) (“It is neither a bona fide offerings of goods or services, nor an example of a legitimate noncommercial or fair use…[when] the holder of a domain name, confusingly similar to a registered mark, attempts to profit by passing itself off as Complainant”).
Accordingly, the Panel finds that Policy ¶ 4(a)(ii) has been established by Complainant.
The Panel concludes that Respondent registered and is using the Disputed Domain Names in bad faith.
Respondent has exhibited many instances of bad faith. For example, Respondent’s bad faith registration and use of the Disputed Domain Names is evidenced by the registration of the Disputed Domain Names long after Complainant established trademark rights in the BOFA and BA Marks, which is indicative of bad faith. Further, Respondent has redirected the Disputed Domain Names to websites that copy a password protected portal of Complainant in furtherance of a fraudulent phishing scheme to take advantage of unsuspecting consumers. Under Policy ¶ 4(b)(iv), the use of a disputed domain name to pass off as a complainant and engage in phishing for commercial gain is considered evidence of bad faith. See Bittrex, Inc. v. Caroline Alves Maia, FA 1796113 (Forum Aug. 6, 2018) (finding the respondent registered and used the domain name in bad faith per Policy ¶ 4(b)(iv) because the respondent used the disputed domain name to present users with a website that was “virtually identical, with the same color scheme, the same layout and the same substantive content” and used the website to gain access to users’ cryptocurrency accounts); see also FIL Limited v. Li jie, FA 1718900 (Forum Mar. 17, 2017) (finding the <fidelity.cn.com> domain name was registered and used in bad faith as it resolved to a website which mimicked the complainant’s login page in an attempt to gain Internet users’ personal and financial information).
Accordingly, the Panel finds that Policy ¶ 4(a)(iii) has been established by 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 <sync-boa.com>, <sso-boa.com>, and <sso-boa.net> Disputed Domain Names be TRANSFERRED from Respondent to Complainant.
Lynda M. Braun, Panelist
Dated: November 6, 2020
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