Givelify LLC v. James Bond
Claim Number: FA2209002013333
Complainant is Givelify LLC (“Complainant”), represented by Jimi Kolawole, US. Respondent is James Bond (“Respondent”), US.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <givelify.us>, registered with NameCheap, Inc.
The undersigned certifies that he has acted independently and impartially, and, to the best of his knowledge, has no conflict of interests in serving as Panelist in this proceeding.
Terry F. Peppard as Panelist.
Complainant submitted a Complaint to Forum electronically on September 25, 2022; Forum received payment on Paper file date.
On Sep 26, 2022, NameCheap, Inc. confirmed by e-mail to Forum that the <givelify.us> 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 the U.S. Department of Commerce’s usTLD Dispute Resolution Policy (the “Policy”).
On September 27, 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@givelify.us. Also on September 27, 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 25, 2022, pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed Terry F. Peppard as sole Panelist in this proceeding.
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 to the usTLD Dispute Resolution Policy (“Rules”). Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the usTLD Policy, usTLD Rules, the National Arbitration 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 mobile- and web-based donation management company dedicated to helping places of worship and nonprofit organizations connect with prospective charitable donors.
Complainant holds a registration for the trademark GIVELIFY, which is on file with the United States Patent and Trademark Office (“USPTO”) as Registry No. 4,491,096, registered March 4, 2014.
Complainant does business via the official domain name <givelify.com>.
Respondent registered the domain name <givelify.us> on August 23, 2022.
The domain name is substantively identical to Complainant’s GIVELIFY mark.
Respondent has not been commonly known by the disputed <givelify.us> domain name.
Respondent is not affiliated with Complainant in any way.
Respondent is not licensed or otherwise authorized to use Complainant’s GIVELIFY mark.
Respondent does not use the domain name in connection with either a bona fide offering of goods or services or a legitimate noncommercial or fair use.
Respondent has neither rights to nor legitimate interests in the domain name.
Respondent both registered and now uses the domain name in bad faith.
B. Respondent
Respondent failed to submit a Response in this proceeding.
(1) the domain name registered by Respondent is substantively identical and therefore confusingly similar to a trademark in which Complainant has rights; and
(2) Respondent has no rights to or legitimate interests in respect of the domain name; and
(3) the same domain name was registered and is now being used by Respondent 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:
i. the domain name registered by Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
ii. Respondent has no rights or legitimate interests in respect of the domain name; and
iii. the domain name has been registered or is being used by Respondent 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 to the Complaint filed in this proceeding, the Panel will, pursuant to paragraphs 5(f), 14(a) and 15(a) of the Rules, make its decision on the basis of Complainant's undisputed allegations, and, in so doing, draw such inferences as it considers appropriate pursuant to paragraph 14(b) of the Rules. The Panel is entitled to accept all reasonable allegations set out in the Complaint. However, the Panel may deny relief where a complaint contains merely conclusory or unsubstantiated arguments. See, for example, WIPO Jurisprudential Overview 3.0 at ¶ 4.3. See also eGalaxy Multimedia Inc. v. ON HOLD, 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”).
By virtue of its registration of the GIVELIFY trademark with a national trademark authority, the USPTO, Complainant has established that it has rights in that mark sufficient to satisfy the requirement of Policy ¶ 4(a)(i) that it demonstrate standing to pursue its claim against Respondent in this proceeding. See, for example, Liberty Global Logistics, LLC v. damilola emmanuel / tovary services limited, FA 1738536 (Forum August 4, 2017):
Registration of a mark with the USPTO sufficiently establishes
the required rights in the mark for purposes of the Policy.
Turning to the core question posed by Policy ¶ 4(a)(i), we conclude from a review of the record that Respondent’s <givelify.us> domain name is substantively identical, and, therefore, confusingly similar, to Complainant’s GIVELIFY mark. The domain name incorporates the mark in its entirety, with only the addition of the country code Top Level Domain (“ccTLD”) “.us.” The addition of a ccTLD to the mark of another in creating a domain name does not distinguish the domain name from the mark under the standards of the Policy. See, for example, MIGROS-GENOSSENSCHAFTS-BUND v. Tayfun yalcin, FA 1621184 (Forum July 8, 2015):
In light of the fact that Respondent’s disputed domain name incorporates Complainant’s whole mark and merely adds the ccTLD “.us,” the Panel here finds that the disputed domain name is identical to Complainant’s … mark.
See also Farouk Systems, Inc. v. Jack King / SLB, FA 1618704 (Forum June 19, 2015):
The ccTLD “.us” designation is inconsequential to a Policy ¶ 4(a)(i) analysis.
This is because every domain name requires a ccTLD or other TLD.
Under Policy ¶ 4(a)(ii), Complainant must make out a prima facie showing that Respondent lacks rights to and legitimate interests in the domain name <givelify.us>, whereupon the burden shifts to Respondent to show that it does have such rights or interests. See, for example, Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Forum August 18, 2006) (finding that a UDRP complainant must make a prima facie case that a respondent lacks rights to or legitimate interests in a disputed domain name under UDRP ¶ 4(a)(ii) before the burden shifts to that respondent to show that it does have such rights or interests). See also AOL LLC v. Gerberg, FA 780200 (Forum September 25, 2006):
Complainant must … make a prima facie showing that Respondent does not have rights or legitimate interest in the subject domain names, which burden is light. If Complainant satisfies its burden, … the burden shifts to Respondent to show that it does have rights or legitimate interests in the subject domain names.
Complainant has made a sufficient prima facie showing under this head of the Policy. Respondent’s failure to respond to the Complaint therefore permits us to infer that Respondent does not have rights to or legitimate interests in the disputed domain name. See, for example, Desotec N.V. v. Jacobi Carbons AB, D2000-1398 (WIPO December 21, 2000) (finding that a respondent’s failure to respond to a UDRP complaint allows a presumption that a complainant’s allegations are true unless they are clearly contradicted by the evidence). Nonetheless, we will examine the record before us, in light of the considerations set out in Policy ¶ 4(c)(i)-(iv), to determine whether there is in it any basis for concluding that Respondent has rights to or legitimate interests in the domain name that are cognizable under the Policy.
We begin by noting that there is nothing in the record before us suggesting that Respondent is the owner or beneficiary of a trademark or service mark that is identical to the <givelify.us> domain name. We conclude, therefore, that Respondent has no claim of rights to or legitimate interests in the domain name under Policy ¶ 4(c)(i). See, for example, Pepsico, Inc. v. Becky, FA 117014 (Forum September 3, 2002), finding that, because there was no evidence showing that a respondent owned a trademark or service mark reflecting a specific domain name, it could not lay claim to rights or legitimate interests in that domain name under Policy ¶ 4(c)(i).
We next observe that Complainant asserts, without objection from Respondent, that, beginning on the very date the domain name was registered, Respondent has been using it solely to deliver to unsuspecting Internet users e-mail messages fraudulently offering nonexistent work-at-home opportunities purportedly on behalf of Complainant. Such a use is neither a bona fide offering of goods or services under Policy ¶ 4(c)(ii) nor a legitimate noncommercial or fair use under Policy ¶ 4(c)(iv). See, for example, Microsoft Corporation v. Terrence Green, FA 1661030 (Forum April 4, 2016) (finding that a respondent’s use of disputed domain names to send fraudulent e-mail messages purportedly from agents of a UDRP complainant were neither a bona fide offering of goods or services under UDRP ¶ 4(c)(i) [equivalent to usTLD Policy ¶ 4(c)(ii)] nor a legitimate noncommercial or fair use of the domain names under UDRP ¶ 4(c)(iii) [equivalent to usTLD Policy ¶ 4(c)(iv)].
Finally, under this head of the Policy, we take cognizance of Complainant’s allegation, which, once again, Respondent does not deny, that Respondent is not affiliated with Complainant in any way, nor is it licensed or otherwise authorized to use Complainant’s GIVELIFY mark, and that Respondent has not been commonly known by the challenged <givelify.us> domain name. In this connection we note that the pertinent WHOIS information identifies the registrant of the domain name only as “James Bond,” which does not resemble the domain name. On this record, we conclude that Respondent has not been commonly known by the contested domain name so as to have acquired rights to or legitimate interests in it within the ambit of Policy ¶ 4(c)(iii). See, for example, Google LLC v. Bhawana Chandel / Admission Virus, FA 1799694 (Forum September 4, 2018), finding that a respondent was not commonly known by a disputed domain name incorporating the GOOGLE mark where the relevant WHOIS record identified that respondent only as “Bhawana Chandel.”
The Panel therefore finds that Complainant has satisfied the proof requirements of Policy ¶ 4(a)(ii).
We are persuaded by the evidence before us that, as alleged in the Complaint, Respondent uses the challenged <givelify.us> domain name solely to deliver to unsuspecting Internet users e-mail messages fraudulently offering nonexistent work-at-home opportunities purportedly on behalf of Complainant. This use of the domain name is disruptive of Complainant’s business. Moreover, in the circumstances detailed in the Complaint, we may comfortably presume that Respondent misuses the domain name thus in order surreptitiously to collect and profit from the exploitation of the sensitive and confidential personal data of unsuspecting job applicants. This employment of the domain name cannot be characterized as other than registration and use in bad faith as that term is used in the Policy. See, for example, Microsoft Corporation v. Terrence Green, supra (finding a respondent’s use of disputed domain names to send fraudulent emails was disruptive of a complainant’s business under Policy ¶ 4(b)(iii) and so supported a finding of bad faith registration and use of the domain name.
The Panel thus finds that Complainant has amply satisfied the proof requirements of Policy ¶ 4(a)(iii).
Complainant having established all three elements required to be proven under the usTLD Policy, the Panel concludes that the relief requested must be, and it is hereby, GRANTED.
Accordingly, it is Ordered that the <givelify.us> domain name be forthwith TRANSFERRED from Respondent to Complainant.
Terry F. Peppard, Panelist
Dated: October 28, 2022
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