Fair Isaac Corporation v. Vince O'Keefe / Virtual Storyboards
Claim Number: FA2303002034639
Complainant is Fair Isaac Corporation (“Complainant”), represented by Ted Koshiol of Fair Isaac Corporation, Minnesota, USA. Respondent is Vince O'Keefe / Virtual Storyboards (“Respondent”), Georgia, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <ficosource.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.
Richard Hill as Panelist.
Complainant submitted a Complaint to Forum electronically on March 6, 2023; Forum received payment on March 6, 2023.
On March 7, 2023, GoDaddy.com, LLC confirmed by e-mail to Forum that the <ficosource.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 March 8, 2023, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of March 28, 2023 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@ficosource.com. Also on March 8, 2023, 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. Respondent did however send an email to the Forum, see below.
On March 31, 2023, 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 offers applied analytics services. Complainant was founded in 1956 on the premise that data, used intelligently, can improve business decisions. Today, Complainant’s software and the widely used FICO® Score operationalize analytics, enabling thousands of businesses in nearly 120 countries to uncover new opportunities, make timely decisions that matter, and execute them at scale. Most leading banks and credit card issuers rely on Complainant’s solutions, as do insurers, retailers, telecommunications providers, automotive companies, public agencies, and organizations in other industries. Complainant also serves consumers through online services that enable people to access and understand their FICO® Scores, the standard measure in the U.S. of consumer credit risk, empowering them to increase financial literacy and manage their financial health. In fiscal year 2022, Complainant had revenues of $1.38 billion and employed approximately 3,400 people in offices worldwide. In November 2022, Complainant ranked fifth in Chartis’s annual RiskTech100® report of the world’s leading risk technology providers. Complainant also was awarded first place in six categories including Innovation, Artificial Intelligence Applications, Financial Crime – Enterprise Fraud and Retail Credit Analytics; with first-time wins in Innovation – Retail Finance and Innovation – AI and Decision Management Platform. In July 2022, Complainant was named the Best Technology Provider for Data Analytics at the 2022 Credit Awards by Credit Strategy. In March 2021, Complainant was named Category Leader for Enterprise Fraud Solutions in the Financial Crime Risk Management Systems: Enterprise Fraud; Market Update and Vendor Landscape, 2021 report from research firm Chartis three years in a row. In December 2020, Complainant was named a leader by Forrester Research in The Forrester Wave™: Digital Decisioning Platforms, Q4 2020 report. In September 2020, Complainant’s Loan Origination Solution was named a best in class leader for retail loan origination solutions by Aite Group. Complainant won Financial Crime Product of the Year at the Risk Technology Awards, held by Risk.net in July 2020. Complainant's FICO® Scores are the most used credit bureau scores in the world. FICO® Scores are available through the major consumer reporting agencies in the United States as well as in other countries worldwide. The goods and services offered in connection with the Complainant’s FICO mark include, but are not limited to: predictive analytics designed to detect patterns such as risk and fraud, optimization analytics used to improve the design of decision logics or “strategies,” consumer credit solutions, fraud, compliance and security management solutions, data management and transaction profiling solutions, business-to-business scoring solutions and services, customer management software, consulting tools, marketing applications, originations applications, collections and recovery applications, communications applications, and professional services associated with all these. Complainant’s sales of products and services in connection with its FICO mark since it became the company’s house mark and trade name in 2009 exceed $11,000,000,000 globally and $7,300,000,000 in the U.S. Complainant has rights in the FICO mark through its registration of the mark in the United States in 1999. The mark is well known.
Complainant alleges that the disputed domain name is virtually identical and confusingly similar to its FICO mark because it incorporates the mark in its entirety and merely adds the generic/descriptive term “source” and the “.com” generic top-level domain (“gTLD”). Complainant cites UDRP precedents to support its position.
According to Complainant, Respondent has no rights or legitimate interests in the disputed domain name. Respondent is not commonly known by the disputed domain name and Complainant has not authorized or licensed to Respondent any rights in the FICO mark. Respondent does not use the disputed domain name for a bona fide offering of goods or services or a legitimate noncommercial or fair use. Instead, the disputed domain name resolves to a webpage that offers competing services. Complainant cites UDRP precedents to support its position.
Further, says Complainant, Respondent registered and uses the disputed domain name in bad faith. Respondent registered the disputed domain name in order to disrupt Complainant’s business by offering competing services at the resolving website. Respondent registered the disputed domain name with actual knowledge of Complainant’s rights in the FICO mark. Complainant cites UDRP precedents to support its position.
B. Respondent
Respondent failed to submit a Response in this proceeding. In its email to the Forum, Respondent states, in pertinent part: “I bought the domain through godaddy, and it is no longer in use and hasn't been in a long time? What do I need to do to settle this?”
For the reasons set forth below, the Panel will not make any findings of fact, however, it notes that Complainant presented evidence showing that the resolving website purported to offer services that compete with those of Complainant.
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.
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."
The Panel interprets Respondent’s email to the Forum to indicate consent to transfer the disputed domain name. Thus, in the present case, the parties have both asked for the domain name to be transferred to the Complainant. In accordance with a general legal principle governing arbitrations as well as national court proceedings, this Panel holds that it cannot act nec ultra petita nec infra petita, that is, that it cannot issue a decision that would be either less than requested, nor more than requested by the parties. Since the requests of the parties in this case are identical, the Panel has no scope to do anything other than to recognize the common request, and it has no mandate to make findings of fact or of compliance (or not) with the Policy.
See Malev Hungarian Airlines, Ltd. v. Vertical Axis Inc., FA 212653 (Forum Jan. 13, 2004); see also Boehringer Ingelheim Int’l GmbH v. Modern Ltd. – Cayman Web Dev., FA 133625 (Forum Jan. 9, 2003) (transferring the domain name registration where the respondent stipulated to the transfer); see also Disney Enters., Inc. v. Morales, FA 475191 (Forum June 24, 2005) (“[U]nder such circumstances, where Respondent has agreed to comply with Complainant’s request, the Panel felt it to be expedient and judicial to forego the traditional UDRP analysis and order the transfer of the domain names.”).
For the reasons set forth above, the Panel will not analyze this element of the Policy.
For the reasons set forth above, the Panel will not analyze this element of the Policy.
For the reasons set forth above, the Panel will not analyze this element of the Policy.
Given the common request of the Parties, it is Ordered that the <ficosource.com> domain name be TRANSFERRED from Respondent to Complainant.
Richard Hill, Panelist
Dated: March 31, 2023
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