FTI Consulting, Inc. v. Kellie Spencer
Claim Number: FA2208002009920
Complainant is FTI Consulting, Inc. (“Complainant”), represented by Thomas E. Zutic of DLA Piper LLP, District of Columbia, USA. Respondent is Kellie Spencer (“Respondent”), New York, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <fticonsultting.com>, registered with NameCheap, Inc.
PANEL
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.
Alan L. Limbury, as Panelist.
Complainant submitted a Complaint to Forum electronically on August 26, 2022. Forum received payment on August 26, 2022.
On August 26, 2022, NameCheap, Inc. confirmed by e-mail to Forum that the <fticonsultting.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 August 30, 2022, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of September 19, 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@fticonsultting.com. Also on August 30, 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, Forum transmitted to the parties a Notification of Respondent Default.
On September 28, 2022, pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed Alan L. Limbury as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that 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, 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 world-renowned business advisory firm. Complainant has rights in the FTI CONSULTING mark through use since as early as 1982 and numerous registrations over many years around the world, including with the United States Patent and Trademark Office (“USPTO”). Respondent’s <fticonsultting.com> domain name is confusingly similar to Complainant’s FTI CONSULTING mark.
Complainant operates its official Internet web site at <fticonsulting.com>.
Respondent lacks rights or legitimate interests in the <fticonsultting.com> domain name as Respondent is not commonly known by the domain name. Complainant has no business relationship, affiliation, connection, endorsement, or association with Respondent nor did Complainant authorize Respondent to use the FTI CONSULTING mark in any way. Respondent is not using the domain name in connection with a bona fide offering of goods or services, nor in connection with a legitimate non-commercial or fair use.
Respondent registered the domain name in bad faith with actual or imputed knowledge of Complainant’s FTI marks and is using the domain name in bad faith as part of an apparent scam or identity theft with the sole purpose of defrauding innocent parties by impersonating Complainant in emails.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant has established all the elements entitling it to relief.
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 shown that it has rights in the FTI CONSULTING mark through numerous registrations of the mark in many countries, including with the USPTO (e.g. Reg. No. 3,941,049, registered April 5, 2011). The Panel finds Respondent’s <fticonsultting.com> domain name to be confusingly similar to Complainant’s FTI CONSULTING mark since it incorporates the mark in its entirety, simply adding a second letter “t” to the word “consulting” and the inconsequential “.com” generic top-level domain (“gTLD”), which may be ignored.
Complainant has established this element.
(i) before any notice to Respondent of the dispute, the use by Respondent of, or demonstrable preparations to use, the domain name or a name corresponding to the domain name in connection with a bona fide offering of goods or services; or
(ii) Respondent (as an individual, business or other organization) has been commonly known by the domain name, even if Respondent has acquired no trademark or service mark rights; or
(iii) Respondent is making a legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert customers or to tarnish the trademark or service mark at issue.
The <fticonsultting.com> domain name was registered on July 19, 2022, many years after Complainant has shown that its FTI CONSULTING mark had become very well-known worldwide. Complainant has not provided evidence of any use by Respondent of the domain name to send emails. Accordingly, in assessing the second and third elements, the Panel excludes such alleged use from its consideration.
The <fticonsultting.com> domain name is clearly a typosquatted version of Complainant’s FTI CONSULTING mark. The Panel adopts the findings in FTI Consulting, Inc. v. Megan MacArt / ftisconsulting, FA1988520 (Forum Apr. 13, 2022):
“…by registering the Domain Name with a subtle misspelling of Complainant’s mark, adding an “s” between “FTI” and “consulting,” Respondent is guilty of typosquatting, which is the intentional misspelling of a protected trademark to take advantage of typing errors made by Internet users seeking the web sites of the owners of the mark. Registering a typosquatted domain name has been held to evidence a lack of rights and legitimate interests in the domain name for the purposes of Policy ¶ 4(a)(ii). Chegg Inc. v. yang qijin, FA1503001610050 (Forum Apr. 23, 2015) (“Users might mistakenly reach Respondent’s resolving website by misspelling Complainant’s mark. Taking advantage of Internet users’ typographical errors, known as typosquatting, demonstrates a respondent’s lack of rights or legitimate interests under Policy ¶ 4(a)(ii).”). The Panel finds that Respondent has no rights or legitimate interests in respect of the domain name.”
These circumstances are sufficient to constitute a prima facie showing of absence of rights or legitimate interests in respect of the domain name on the part of Respondent. The evidentiary burden therefore shifts to Respondent to show that it does have rights or legitimate interests in the <fticonsultting.com> domain name. See JUUL Labs, Inc. v. Dryx Emerson / KMF Events LTD, FA1849706 (Forum July 17, 2019). Respondent has made no attempt to do so.
Complainant has established this element.
Registration and Use in Bad Faith
The four illustrative circumstances set out in paragraph 4(b) of the Policy as evidence of the registration and use of a domain name in bad faith for purposes of paragraph 4(a)(iii) are not exclusive.
As mentioned, the <fticonsultting.com> domain name is clearly a deliberately typosquatted version of Complainant’s very well-known and distinctive FTI CONSULTING mark. There is no plausible explanation for the registration of the domain name other than to take advantage of the goodwill of Complainant. See Yahoo! Inc. and GeoCities v. Cupcakes, Cupcake City, Cupcake Confidential, Cupcake-Party, Cupcake Parade, and John Zuccarini, Case No. D2000-0777 (WIPO Oct. 2, 2000).
Typosquatting is independent evidence of bad faith registration and use of a domain name per Policy ¶ 4(a)(iii). See Homer TLC, Inc. v. Artem Ponomarev, FA1623825 (Forum July 20, 2015).
Complainant has established this element.
DECISION
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 <fticonsultting.com> domain name be TRANSFERRED from Respondent to Complainant.
Alan L. Limbury, Panelist
Dated: September 29, 2022
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