Fair Isaac Corporation v. Andrew Loucks / Fico People LLC
Claim Number: FA2211002018728
Complainant is Fair Isaac Corporation ("Complainant"), United States, represented by Ted Koshiol of Fair Isaac Corporation, United States. Respondent is Andrew Loucks / Fico People LLC ("Respondent"), United States.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <ficopeople.com>, registered with GoDaddy.com, LLC.
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.
David E. Sorkin as Panelist.
Complainant submitted a Complaint to Forum electronically on November 2, 2022; Forum received payment on November 2, 2022.
On November 3, 2022, GoDaddy.com, LLC confirmed by email to Forum that the <ficopeople.com> domain name is registered with GoDaddy.com, LLC and that Respondent is the current registrant of the name. GoDaddy.com, LLC has verified that Respondent is bound by the GoDaddy.com, LLC 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 November 7, 2022, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of November 28, 2022 by which Respondent could file a Response to the Complaint, via email to all entities and persons listed on Respondent's registration as technical, administrative, and billing contacts, and to postmaster@ficopeople.com. Also on November 7, 2022, the Written Notice of the Complaint, notifying Respondent of the email 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 December 5, 2022, pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed David E. Sorkin 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 an applied analytics company founded in 1956. Complainant's services are used by consumers, banks, credit card issuers, insurers, retailers, and others. In fiscal year 2021, Complainant had revenues of $1.32 billion and employed approximately 3,600 people in offices worldwide. Complainant has used the FICO mark in connection with its credit-related products and services since at least as early as 1995. Complainant owns longstanding United States trademark registrations for FICO in standard character form, and also asserts common law rights in the mark. Complainant asserts that the FICO mark has become famous as a result of its extensive and continuous use and widespread recognition by businesses and consumers across the United States.
Respondent registered the disputed domain name <ficopeople.com> via a privacy registration service in January 2021. The domain name is being used for a website that offers credit repair, credit monitoring, credit education, and related services, all of which compete directly with services offered by Complainant. Complainant states that it contacted Respondent in September 2022 regarding Respondent's use of Complainant's mark, and that Respondent neither responded nor ceased use of the mark. Complainant states that Respondent is not commonly known by the domain name; has no relationship, affiliation, connection, endorsement, or association with Complainant; and is not authorized, permitted, or licensed to use Complainant's mark.
Complainant contends on the above grounds that the disputed domain name <ficopeople.com> is confusingly similar to its FICO mark; that Respondent lacks rights or legitimate interests in the disputed domain name; and that the disputed domain name was registered and is being used in bad faith.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The Panel finds that the disputed domain name is confusingly similar to a mark in which Complainant has rights; that Respondent lacks rights or legitimate interests in respect of the disputed domain name; and that the disputed domain name was registered and is being used 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 Overview of WIPO Panel Views on Selected UDRP Questions, § 4.3 (3d ed. 2017), available at http://www.wipo.int/amc/en/domains/search/overview3.0/; see also eGalaxy Multimedia Inc. v. ON HOLD By Owner Ready To Expire, FA 157287 (Forum June 26, 2003) (dismissing complaint where complainant failed to "produce clear evidence to support its subjective allegations").
The disputed domain name <ficopeople.com> incorporates Complainant's registered FICO trademark, adding the generic term "people" and the ".com" top-level domain. These additions do not substantially diminish the similarity between the domain name and Complainant's mark. See, e.g., Fair Isaac Corp. v. Benchmark Mortgage, FA 1432619 (Forum Apr. 20, 2012) (finding <ficocompany.com> confusingly similar to FICO); Fair Isaac Corp. v. Dennise Jones, FA 669849 (Forum May 6, 2006) (finding <ficomaster.com> confusingly similar to FICO); Fair, Isaac & Co., Inc. v Inocom, FA 97005 (Forum May 17, 2021) (finding <ficoman.com> and similar domain names confusingly similar to FICO); Accenture Global Services Ltd. v. ICS INC. / PrivacyProtect.org, D2013-2098 (WIPO Feb. 17, 2014) (finding <accenturepeople.com> confusingly similar to ACCENTURE); State Farm Mutual Automobile Insurance Co. v. Twin City Church, FA 624673 (Forum Mar. 1, 2006) (finding <statefarmpeople.com> confusingly similar to STATE FARM). The Panel considers the disputed domain name to be confusingly similar to a mark in which Complainant has rights.
Under the Policy, the Complainant must first make a prima facie case that the Respondent lacks rights and legitimate interests in the disputed domain name, and then the burden shifts to the Respondent to come forward with concrete evidence of such rights or legitimate interests. See Hanna-Barbera Productions, Inc. v. Entertainment Commentaries, FA 741828 (Forum Aug. 18, 2006).
The disputed domain name incorporates Complainant's registered mark without authorization, and it is being used to promote services that compete directly with those offered by Complainant. Respondent has not come forward with evidence of bona fide use, and based upon the information available to the Panel, it appears unlikely that Respondent's use of Complainant's mark would qualify as a nominative fair use. See, e.g., Fair Isaac Corp. v. Jessica Ruiz / FICOSAC, FA 1998211 (Forum June 29, 2022) (finding lack of rights or interests in similar circumstances); see generally WIPO Overview of WIPO Panel Views on Selected UDRP Questions, supra, § 2.8.1 (setting forth requirements for bona fide use, citing Oki Data Americas, Inc. v. ASD, Inc., D2001-0903 (WIPO Nov. 6, 2001)).
Complainant has made a prima facie case that Respondent lacks rights and legitimate interests in the domain name, and Respondent has failed to come forward with any evidence of such rights or interests. Accordingly, the Panel finds that Complainant has sustained its burden of proving that Respondent lacks rights or legitimate interests in respect of the disputed domain name.
Finally, Complainant must show that the disputed domain name was registered and is being used in bad faith. Under paragraph 4(b)(iii) of the Policy, bad faith may be shown by evidence that Respondent registered the disputed domain name "primarily for the purpose of disrupting the business of a competitor." Under paragraph 4(b)(iv), bad faith may be shown by evidence that "by using the domain name, [Respondent] intentionally attempted to attract, for commercial gain, Internet users to [Respondent's] web site or other on-line location, by creating a likelihood of confusion with the complainant's mark as to the source, sponsorship, affiliation, or endorsement of [Respondent's] web site or location or of a product or service on [Respondent's] web site or location."
Respondent registered a domain name incorporating Complainant's well-known mark in the name of a privacy registration service and is using the domain name to promote directly competing services. Such conduct is indicative of bad faith registration and use under the Policy. See, e.g., Fair Isaac Corp. v. Jessica Ruiz / FICOSAC, supra (finding bad faith registration and use in similar circumstances); Fair Isaac Corp. v. Benchmark Mortgage, supra (same); Fair Isaac Corp. v. Dennise Jones, supra (same); Fair, Isaac & Co., Inc. v Inocom, supra (same). The Panel so finds.
Having considered the three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <ficopeople.com> domain name be TRANSFERRED from Respondent to Complainant.
David E. Sorkin, Panelist
Dated: December 6, 2022
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