E*Trade Financial Holdings, LLC v. Alex Drown
Claim Number: FA2209002013318
Complainant is E*Trade Financial Holdings, LLC (“Complainant”), represented by Eric J. Shimanoff of Cowan, Liebowitz & Latman, P.C., New York. Respondent is Alex Drown (“Respondent”), India.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <etredae.com>, registered with NameCheap, Inc..
The undersigned certifies that he or she has acted independently and impartially and to the best of his or her knowledge has no known conflict in serving as Panelist in this proceeding.
Richard Hill as Panelist.
Complainant submitted a Complaint to Forum electronically on September 23, 2022; Forum received payment on September 23, 2022.
On September 24, 2022, NameCheap, Inc. confirmed by e-mail to Forum that the <etredae.com> domain name is 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 September 26, 2022, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of October 17, 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@etredae.com. Also on September 26, 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 October 21, 2022, pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed Richard Hill 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 states that it operates in the financial services industry. Complainant originated as a platform that allowed retail investors to trade stocks online. Today, Complainant provides a suite of digital financial services for investors, traders, financial advisors, stock plan participants, and stock plan administrators. Complainant employs more than 4,100 individuals and has 30 retail branches across the United States. In October 2020, Morgan Stanley announced that it had completed its acquisition of Complainant. With the acquisition, Morgan Stanley’s Wealth Management division oversees approximately $3.3 trillion in assets. Complainant has rights in the E*TRADE and ETRADE.COM marks through their registration in the United States in, respectively, 1996 and 2002. The marks are famous.
Complainant alleges that the disputed domain name is confusingly similar to its E*TRADE mark because it consists of a misspelling of the mark (replacing the letter “a” with an “e”, and inserting an “a” after “d”), merely adding the “.com” generic top level domain (gTLD).
According to Complainant, Respondent does not have rights or legitimate interests in the disputed domain name. Respondent is not commonly known by the disputed domain name, nor has Complainant authorized or licensed Respondent to use its marks in any way. Respondent does not use the disputed domain name for any bona fide offering of goods or services, or a legitimate non commercial or fair use, but instead used it in connection with an apparent attempt to impersonate Complainant and phish for consumers’ personal information. Specifically, the disputed domain name is referenced in and linked in the third-party site <https://etradeloginaccount.godaddysites.com/>, which replicated Complainant’s login screen, name and logos. The resolving website which uses the names and marks “ETrade Login” and “ETRADE”, purports to offer services identical or nearly identical to Complainant’s services, and purports to be Complainant.
Further, says Complainant, Respondent registered and uses the disputed domain name in bad faith. It creates initial interest confusion. By ostensibly using the disputed domain name to impersonate Complainant and phish for consumers’ personal information, Respondent seeks falsely to suggest that it is somehow endorsed by or affiliated with Complainant. Complainant had actual or constructive notice of Complainant’s mark.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant owns the marks E*TRADE and ETRADE.COM and uses them to provide financial services.
Complainant’s rights in its marks date back to, respectively, 1996 and 2002.
The disputed domain name was registered in 2022.
Complainant has not licensed or otherwise authorized Respondent to use its marks.
The resolving website purports to provide information on Complainant and how to login to Complainant’s web site, but does not actually do so (the links to “ETrade Login” lead back to the resolving website).
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 disputed domain name consists of a misspelling of Complainant’s E*TRADE mark (replacing the letter “a” with an “e”, and inserting an “a” after “d”), merely adding the “.com” generic top level domain (gTLD). It also consists of a misspelling of Complainant’s ETRADE.COM mark, again replacing the letter “a” with an “e”, and inserting an “a” after “d”. Previous Panels have held that misspelling or swapping letters does not negate confusing similarity between a domain name and a mark under Policy ¶ 4(a)(i). See Coachella Music Festival, LLC v. Domain Administrator / China Capital Investment Limited, FA 1734230 (Forum July 17, 2017) (“The addition of letters—particularly of those that create a common misspelling—fails to sufficiently distinguish a domain name from a registered mark.”); see also Intelius, Inc. v. Hyn, FA 703175 (Forum July 5, 2006) (finding the <intellus.com> domain name to be confusingly similar to the complainant’s INTELIUS mark because the domain name differed from the mark by one letter and was visually similar).
Furthermore, according to 1.7 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Jurisprudential Overview 3.0”): “In specific limited instances, while not a replacement as such for the typical side-by-side comparison, where a panel would benefit from affirmation as to confusing similarity with the complainant’s mark, the broader case context such as website content trading off the complainant’s reputation …, may support a finding of confusing similarity. …”.
Here, the resolving website purports to provide information on Complainant and how to login to Complainant’s web site. Thus the resolving website’s content trades off Complainant’s reputation and this supports the finding of confusing similarity.
For all these reasons, the Panel finds that the disputed domain name is confusingly similar to Complainant’s marks per Policy ¶ 4(a)(i).
Complainant has not licensed or otherwise authorized Respondent to use its mark. Respondent is not commonly known by the disputed domain name: under Policy ¶ 4(c)(ii), relevant WHOIS information may demonstrate that a Respondent is not commonly known by a disputed domain name. See Chevron Intellectual Property LLC v. Fred Wallace, FA1506001626022 (Forum July 27, 2015) (finding that the respondent was not commonly known by the <chevron-europe.com> domain name under Policy ¶ 4(c)(ii), as the WHOIS information named “Fred Wallace” as registrant of the disputed domain name). Here, the WHOIS record identifies the registrant as “Alex Drown”. Therefore the Panel finds that Respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii).
The resolving website offers fake services. Specifically, the resolving website purports to provide information on Complainant and how to login to Complainant’s website, but does not actually do so: the URL embedded in the links to “ETrade Login” on the resolving website are actually just the disputed domain name. This is not a bona fide offering of goods or services under Policy ¶ 4(c)(i) nor a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii). See Acton Educational Services, Inc. d/b/a West Coast University v. Adam Smith, FA0812001238865 (Forum Jan. 26, 2009) (no rights or legitimate interests when Respondent was not offering real educational services). Thus the Panel finds that Respondent fails to use the disputed domain name to make 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). And the Panel finds that Respondent does not have rights or legitimate interests in the disputed domain name.
Complainant makes much of the fact that the resolving website is referenced in a third-party website that appears to be used for phishing. However, Complainant does not allege—much less provide evidence to show—that Respondent was responsible for, or even aware of, that reference.
As noted above, the links to “ETrade Login” on the resolving website merely lead back to the resolving website itself. That is, they are fake. It seems reasonable to assume that the resolving website is an unfinished attempt to set up a phishing scheme. However, this is unproven and the matter can remain unresolved, because the Panel anyway finds bad faith registration and use for the reasons given below.
Respondent (who did not reply to Complainant’s contentions) has not presented any plausible explanation for its use of Complainant’s mark. In accordance with paragraph 14(b) of the Rules, the Panel shall draw such inferences from Respondent’s failure to reply as it considers appropriate. Accordingly, the Panel finds that Respondent did not have a legitimate use in mind when registering the disputed domain name.
Indeed, as already noted, the resolving website offers fake services. This can be evidence of bad faith registration and use under the Policy. See Bridgewater Associates, LP v. Mike Manning, FA2112001976062 (Forum Jan. 4, 2022) (finding bad faith registration and use where the resolving website was offering fake financial services). Thus the Panel finds bad faith registration and use in the sense of the Policy.
Further, Respondent registered the disputed domain name with actual knowledge of Complainant’s mark: the resolving website refers to Complainant and its products. While constructive notice is insufficient to demonstrate bad faith, actual knowledge of a complainant’s rights in a mark prior to registration may be evidence of bad faith per Policy ¶ 4(a)(iii). See Custom Modular Direct LLC v. Custom Modular Homes Inc., FA 1140580 (Forum Apr. 8, 2008) (“There is no place for constructive notice under the Policy.”); see also Orbitz Worldwide, LLC v. Domain Librarian, FA 1535826 (Forum Feb. 6, 2014) (“The Panel notes that although the UDRP does not recognize ‘constructive notice’ as sufficient grounds for finding Policy ¶ 4(a)(iii) bad faith, the Panel here finds actual knowledge through the name used for the domain and the use made of it.”); 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). The Panel finds that Respondent had actual knowledge of Complainant’s rights in the mark prior to Respondent’s registration of the disputed domain name and that this constitutes bad faith registration and use under Policy ¶ 4(a)(iii).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <etredae.com> domain name be TRANSFERRED from Respondent to Complainant.
Richard Hill, Panelist
Dated: October 21, 2022
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