ConsumerDirect, Inc. v. August Taylor
Claim Number: FA2203001990619
Complainant is ConsumerDirect, Inc. (“Complainant”), represented by Meredith Williams of Rutan & Tucker LLP, California, USA. Respondent is August Taylor (“Respondent”), Vietnam.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <consumerdirectsavings.com>, 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.
Paul M. DeCicco, as Panelist.
Complainant submitted a Complaint to the Forum electronically on March 31, 2022; the Forum received payment on March 31, 2022.
On March 31, 2022, NameCheap, Inc. confirmed by e-mail to the Forum that the <consumerdirectsavings.com> 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 April 4, 2022, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of April 25, 2022 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@consumerdirectsavings.com. Also on April 4, 2022, 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 April 29, 2022, 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, ConsumerDirect, Inc., provides credit score management services.
Complainant has rights in the CONSUMERDIRECT mark based upon registration with the United States Patent and Trademark Office (“USPTO”).
The <consumerdirectsavings.com> domain name is confusingly similar to Complainant’s mark because Respondent has incorporated the entire mark and added the generic word “savings” and the “.com” generic top level domain (“gTLD”).
Respondent does not have rights or legitimate interests in the <consumerdirectsavings.com> domain because Respondent is not commonly known by the at-issue domain name and is not authorized to use Complainant’s CONSUMERDIRECT mark. Additionally, Respondent fails to use the domain name in connection with a bona fide offering of goods or services or a legitimate noncommercial or fair use because Respondent uses the domain name in furtherance of a phishing scheme.
Respondent registered and uses the <consumerdirectsavings.com> domain name in bad faith because Respondent uses the at-issue domain name to attract users for commercial gain and to disrupt Complainant’s business. In addition, Respondent had constructive and/or actual knowledge of Complainant’s rights in the mark prior to registering the domain.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant has rights in the CONSUMERDIRECT mark.
Complainant’s rights in CONSUMERDIRECT existed prior to Respondent’s registration of the at-issue domain name.
Respondent is not authorized to use Complainant’s trademark.
Respondent uses the domain name in furtherance of a phishing scheme aimed at swindling third-parties.
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 USPTO registration for CONSUMERDIRECT demonstrates Complainant’s rights in a mark under Policy ¶ 4(a)(i). See Home Depot Product Authority, LLC v. Samy Yosef / Express Transporting, FA 1738124 (Forum July 28, 2017) (finding that registration with the USPTO was sufficient to establish the complainant’s rights in the HOME DEPOT mark).
The at-issue domain name consists of Complainant’s CONSUMERDIRECT trademark followed by the term “savings” with all followed by the “.com” top-level domain name. The differences between <consumerdirectsavings.com> and Complainant’s CONSUMERDIRECT trademark are insufficient to distinguish the domain name from Complainant’s trademark for the purposes of the Policy. Therefore, the Panel finds pursuant to Policy ¶ 4(a)(i) that Respondent’s <consumerdirectsavings.com> domain name is confusingly similar to Complainant’s WSJ 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 <consumerdirectsavings.com> 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 registrant of <consumerdirectsavings.com> as “August Taylor” and the record before the Panel contains no evidence that otherwise tends to show that Respondent is commonly known by the <consumerdirectsavings.com> domain name. The Panel therefore concludes that Respondent is not commonly known by the at-issue domain name for the purposes of Policy ¶ 4(c)(ii). See Coppertown Drive-Thru Sys., LLC v. Snowden, FA 715089 (Forum July 17, 2006) (concluding that the respondent was not commonly known by the <coppertown.com> domain name where there was no evidence in the record, including the WHOIS information, suggesting that the respondent was commonly known by the disputed domain name).
Respondent uses the at-issue domain name to perpetuate a phishing scheme. Visitors to the <consumerdirectsavings.com> website are duped into submitting credit card information to Respondent. Website visitors who attempt to order offerings from Respondent get charged but never received any benefit and may also be charged for items they never attempted to order. Respondent’s use of the domain name to swindle third parties is neither a bona fide offering of goods or services per Policy ¶ 4(c)(i), nor a legitimate noncommercial or fair use per Policy ¶ 4(c)(iii). See Enterprise Holdings, Inc. v. I S / Internet Consulting Services Inc., FA 1785242 (Forum June 5, 2018) (“On its face, the use of a domain name that is confusingly similar to the mark of another in order to facilitate a phishing scheme cannot be described as either a bona fide offering of goods or services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use under Policy ¶4(c)(iii).”).
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 pursuant to Policy ¶ 4(a)(ii).
The at-issue domain name was registered and is being used in bad faith. As discussed below without limitation, there is evidence from which the Panel may conclude that Respondent acted in bad faith pursuant to Policy ¶ 4(a)(iii).
As discussed above, Respondent is a criminal that uses the at-issue domain name to facilitate a phishing scheme bent on swindling third parties. In so doing, Respondent attracts internet users to its <consumerdirectsavings.com> website for commercial gain and disrupts Complainant’s business. Respondent’s use of <consumerdirectsavings.com> in this manner is evidence of bad faith per Policy ¶¶ 4(a)(iii) and (iv). See Hess Corp. v. GR, FA 770909 (Forum Sept. 19, 2006) (determining that the respondent demonstrated bad faith registration and use because it was attempting to acquire the personal and financial information of Internet users through a confusingly similar domain name); see also Yahoo Inc. v. Martin Lewis, FA 1986924 (Forum Apr. 5, 2022) (finding that “[d]iverting Internet users for commercial gain and impersonating a complainant by use of a complainant’s mark in a likely phishing scheme . . . is confusing and disruptive and evinces bad faith registration and use” under Policy ¶¶ 4(b)(iii) and (iv)).
Moreover, Respondent had actual knowledge of Complainant’s rights in the CONSUMERDIRECT mark when it registered <consumerdirectsavings.com> as a domain name. Respondent’s actual knowledge is evident given the notoriety of Complainant’s CONSUMERDIRECT trademark. Respondent’s registration and use of a confusingly similar domain name with knowledge of Complainant’s trademark rights in such domain name further indicates Respondent’s bad faith pursuant to Policy ¶ 4(a)(iii). See Minicards Vennootschap Onder FIrma Amsterdam v. Moscow Studios, FA 1031703 (Forum Sept. 5, 2007) (holding that respondent registered a domain name in bad faith under Policy ¶ 4(a)(iii) after concluding that respondent had actual knowledge of Complainant's mark when registering the disputed domain name); see also, Univision Comm'cns Inc. v. Norte, FA 1000079 (Forum Aug. 16, 2007) (rejecting the respondent's contention that it did not register the disputed domain name in bad faith since the panel found that the respondent had knowledge of the complainant's rights in the UNIVISION mark when registering the disputed domain name).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <consumerdirectsavings.com> domain name be TRANSFERRED from Respondent to Complainant.
Paul M. DeCicco, Panelist
Dated: May 2, 2022
Click Here to return to the main Domain Decisions Page.
Click Here to return to our Home Page